IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU.
CCH.33.
PRESENT:
SMT. B.S. JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS),
BENGALURU.
DATED: THIS THE 23rd DAY OF DECEMBER 2022
Crl. Misc.No.12497/2022
petitioner :
(accused No.1)
Rakesh, S/o Late Chandram
Aged about 30 years, R/at 13th
cross, Balaji layout, Raguvanahalli,
KKP Main road, Bengaluru.
(By Sri.Byresh Gowda…Adv.)
V/S.

Respondent :
State of Karnataka by Thalagatta
pura police, Bengaluru,
(By Rep Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.175/2022 (In Spl.CC
2499/2022) for the offence punishable U/Sec.18(B) of N.D.P.S.
Act.

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2. The prevalent grounds urged seeking bail:­
That the petitioner is innocent and law abiding citizens.
He has not committed any offence much less the offence as
alleged.

He has been falsely implicated by the respondent in
this case. Though the alleged offence is non bailable, but is
neither punishable with imprisonment for life or death
sentence. The procedure contemplated under N.D.P.S. Act not
followed while recovery. He is having wife and a son who is
aged 6 months. His son is having ill health. The petitioner is
resident of Rajasthan and doing carpentry work. The opium
poppy seized in the case is a raw material and therefore, the
quantum seized in the case has to be considered as small
quantity. The petitioner is ready and willing to abide by any
conditions imposed by this court in the event of grant of bail.
He is ready to offer surety for their due appearance before this
court. Hence, sought to grant bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 6 Kgs., 500 grams of Opium
Poppy which is a commercial quantity. There are sufficient
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Crl.Misc.12497/2022
material available against the petitioner , and the said offences
are punishable with rigorous imprisonment for a term which
shall not be less than 10 years which may extend to 20 years
and shall also be liable to fine. The investigation is pending.
In the event of their release he may tamper with the
prosecution witnesses. Incriminatory articles were seized from
his custody. Investigating agency by complying the provisions
prevailed under the act has seized the contraband from the
petitioner. The petitioner herein would sell the drugs to the
younger generation which may ruin the career of younger
generation. With these specific pleas sought to reject the bail
plea of the petitioner .
4. Heard learned counsel for the petitioner and the
prosecution.
5. The points that arise for my consideration are as here
under:
1. Whether petitioner has made out
sufficient grounds to enlarge him on
bail?
2. What order?

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6. My findings on the above points are as under:
Point No.1: In the Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:­ The PI of Thalagattapura PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:­
On
25.07.2022
at
about
3.00
p.m.,
when
the
complainant was in the station he has received credible
information that three persons are selling opium poppy in a
two wheeler at 100 feet road, Ganigarapalya. On receipt of the
information he has informed to his higher officer and obtained
permission to conduct raid.

The complainant along with his
staff and panchas went to the spot and saw the suspected
persons. He along with staff has apprehended the said
persons.

On enquiry they have revealed their names and
addresses. On search of the bag they found 6 Kgs., 500 grams
of opium poppy. They seized the same. A detail mahazar is
drawn, the accused No 1 to 3 were arrested. A detail report is
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Crl.Misc.12497/2022
5
prepared submitted before SHO. The said report is the basis
to the register the case against the Accused 1 to 3 in
Cr.No.175/2022 for the offence punishable U/Sec.18(B)
N.D.P.S. Act.

of
Now, the investigation in the case is concluded
and charge sheet is filed.

The present petitioner is accused
No.1 in the case.

8.

The learned counsel for petitioner argued that the
investigating agency has not followed proper procedure while
conducting raid. He is innocent and falsely implanted in the
case. He is in no way connected to the crime. In the event of
grant of bail he is ready to offer solvent sureties for his due
appearance before the court.

9. The prosecution contends that 6 Kgs., 500 grams of
opium poppy, seized from the present petitioner and other
accused which is commercial quantity.
habitual drug peddler.

The petitioner is
In the event of his release he may
abscond and may repeat the crime and there is every
possibility of absconding of the petitioner. The offences alleged
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are punishable U/s.18(c) of N.D.P.S. Act is punishable with RI
upto 20 years. The petitioner is not entitled for bail.

10. On looking to the prosecution papers the quantum
of narcotic substance seized 6 Kgs., 500 grams of opium straw.
On looking to the mahazar particulars and photos the
contraband seized is poppy straw and not opium.

As per
specification of small and commercial quantity of narcotic drug
or psychotropic substance issued by Ministry of Finance
Department
of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001 at Sl.No.110 the narcotic drug – poppy straw
weighing 1000 grams is small quantity and 50 Kgs., is a
commercial quantity. In the present case poppy straw seized is
weighing 6 Kgs., 500 grams which is intermediate quantity.

11. It is argued by the learned counsel for petitioner that
the contraband seized is opium poppy and as per the
notification dated 19.10.2001 issued under (7)(a) and 13(a) of
Sec.2 of the act specifying small and commercial quantity,
entry 92 would indicate small quantity of opium to be 25
grams and 2.5 Kgs., is commercial quantity.

Opium paste
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Crl.Misc.12497/2022
under entry No.93 – 5 grams is small and 250 grams is
commercial. Opium Husk under entry No.110 – 1000 grams is
small quantity and 50 Kgs., is commercial quantity. He has
referred to the order of Hon’ble High Court in Crl.Petition
No.102124/2019 dated 28.2.2020 Kulvendar Singh Vs., State
of Karnataka by Excise police. In the said case the Hon’ble
High Court by looking to the facts of the case has entertained
the bail plea of the accused. Further it is discussed that the
quantum of contraband opium seized in the said case is
intermediate quantity. I have carefully gone through the order.
Further, in the instant case, poppy straw seized by the
investigating agency is 6 Kgs., 500 grams which is a
intermediate quantity. At this stage, the material available on
record would speak that the quantum of contraband seized
from the conscious possession of petitioner is poppy straw.
The quantum of contraband seized in the case has to be
termed as intermediate quantity of contraband.

As per the
order of Hon’ble High Court in Crl.Petition 7904/2022 dated
5.9.2022 Dedaram Vs., State of Karnataka the Hon’ble High
Court has granted bail to the accused. In the said case the
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contraband seized by the investigating agency held to be poppy
straw and not opium. In the case on hand if the mahazar and
the photographs scrutinized the contraband seized in the case
is poppy straw and not opium straw.
As per the decision of Hon’ble Apex Court reported in
2018 11 SCC 488 Birbal Prasad Vs., State of Bihar
wherein it is held that:
Ss.37 and 20 – Bail – grant of – non commercial quantity –
quantity involved being only 14 Kgs., of ganja, which is a
non commercial quantity appellant accused not involved in
any other case – in above circumstances, held, appellant
should be released on bail, pending trial – hence, directions
issued to release appellant on bail, on certain conditions.

The said case law aptly applies to the case on hand in holding
that the contraband seized in the case on hand is intermediate
quantity and it is not commercial quantity.

In the said
circumstances, as per the observations of Hon’ble Apex Court
the bail plea of accused to be considered.
11. Here in this case the drugs seized by the investigating
agency to the tune of 6 Kgs., 500 grams of poppy straw which
is an intermediate quantity. When the quantity is less than
CCH­33
Crl.Misc.12497/2022
9
commercial quantity, rigors of Sec.37 of the NDPS Act will not
attract, and factors become similar to bail petitions under
regular statues normal, unless the prosecution points towards
exceptional circumstances.
12. Investigation is concluded and charge sheet is filed.
The offence alleged against the petitioner is not punishable
with
death or imprisonment for life. Further
custodial
interrogation is not warranted. His voluntary statement is
already recorded.

As per the information provided by the
petitioner he is are permanently residing in the address shown
in the cause title. The apprehension of the prosecution that he
may abscond and may protract the trial could be compensated
by imposing stringent conditions. In the result, I answer the
point for consideration in the affirmative.

13. Point No.2:­ In the result, I proceed to pass following:
ORDER
The Petition filed by the petitioner U/Sec.439 of
Cr.P.C is hereby allowed.

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The petitioner is enlarged on bail on executing
personal bond for a sum of Rs.1,00,000/­ with two
sureties for the like sum with following conditions.
1.

He shall not leave the jurisdiction of this
court without prior permission.

2.

He shall not tamper the witness or abscond.

3.

He shall not commit similar offence or
any offence while on bail.

4.

He shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties.

5.

He shall appear before the court on all
hearing dates.

6.

Breach of any of the conditions by the
petitioner would entail cancellation of bail.

[Dictated to the stenographer, directly on the computer, typed and
computerised by her, corrected, signed and then pronounced by me in
Open Court on this the 23rd day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.