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 27th DAY OF JULY 2022
Crl.Misc.No.7131/2022
Petitioner :
(accused No.1 )
Salman Ahmad Kowa toto, s/o
Ahmad toto, aged about 36 years,
R/at Rent in Abdul house, 38th cross,
5th block, H.B.R Layout, Bengaluru
Own address
Kholiat village, Kaduji city, south
Kordofan state, Sudan Country.
(By Sri. NP. Adv.)
V/S.

Respondent :
State by Sanjay Nagar PS
(By 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.120/2022 of Sanjay
Nagar PS., registered for the offence punishable U/Sec. 8(c),
20(B) of NDPS Act.

2
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is very innocent and law abiding
citizen.

He has not committed any offence much less the
offence as alleged. He has no knowledge of alleged crime and
falsely implanted at the instance of extraneous elements. The
mandatory provisions U/s.50 of NDPS Act has not been
complied.

There are no eye witnesses who speak about the
sale of alleged contraband. Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. 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 his due appearance
before this court. He has no bad antecedents. He is the sole
bread earner of his family. Hence, sought to grant bail.

3. The objection raised by the prosecution is that the
investigating agency has in all seized 4 Kgs., 30 grams of ganja
from the possession of the accused. The accused is found to
be in possession of narcotic substance. A detailed mahazar is
CCH­33
Crl.Misc.No.7131/2022
3
drawn in the spot. Personal search is conducted. The offence
alleged against the petitioner is punishable with rigorous
imprisonment for a term which shall extend upto 10 years.
There is a primafacie case available against the petitioner. He
is an habitual drug dealer.

In the event of grant of bail, he
would abscond and may hamper the investigation. Hence,
sought to reject the bail plea of petitioner.

4. Heard the arguments of both sides and perused the
records.
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?
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:
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REASONS
7. POINT NO.1:­ A report submitted by PSI, ., who is the
complainant in this case before the Sanjay Nagar PS.

The
contents of the report is as here under:­
On
05.06.2022
at
about
03.30
pm.,
when
the
complainant was in the station he has received credible
information from an informer that Foreign citizen selling ganja
near Brindavan College, 2nd cross, Bhoopasandra.

He has
informed the Higher Officer and obtained permission to
conduct raid.

He went to the spot and saw the suspected
person. He has apprehended him and on enquiry and during
personal search he has seized 4 Kgs., 30 grams of ganja.
Thereafter, a detail seizure panchanama was drawn. A detail
report was prepared and submitted before SHO which is the
basis to register the case against the accused in Cr.120/2022
for the offence punishable U/s. 8(c), 20(B) of NDPS Act.
Thereafter
accused
was
arrested
and
produced
before
jurisdictional Magistrate and remanded to judicial custody.

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CCH­33
Crl.Misc.No.7131/2022
8. It is argued by the learned counsel for petitioner that
he is planted in the case by the complainant police he is
unaware of seized drug. The seized article is not commercial
quantity. The mandatory provisions of Sec.41, 42, 50, 52 and
47 of the Act are not complied. He is permanent residents of
the address given in the cause title. In the event of grant of
bail he is ready to abide by the conditions which are being
imposed by this court.
9. It is argued by the prosecution that the petitioner has
committed heinous offence 4 Kgs., 30 grams of ganja is seized
from the petitioner and other accused. The offence punishable
with imprisonment upto 10 years and with fine.

There are
prima­facie material available against them.
10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
05.06.2022 complainant has conducted raid and apprehended
accused. On looking to the seizure panchanama the drugs
seized from accused is weighing 4 Kgs., 30 grams of ganja. As
per specification of small and commercial quantity of narcotic
6
drug or psychotropic substance issued by Ministry of Finance
Department
of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001 at Sl.No.55 the narcotic drug­ganja 1000 grams is
small quantity and 20 Kgs., is commercial quantity.

In this
case the quantum of ganja seized is 4 Kgs. 30 grams of ganja
is an intermediate quantity. 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.

CCH­33
Crl.Misc.No.7131/2022
7
11. Here in this case the drugs seized by the investigating
agency to the tune of 4 Kgs., 30 grams of ganja which is an
intermediate
quantity.

When
the
quantity
is
less
than
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.

The major portion of investigation in the case is
concluded as the incriminatory article is already seized from
accused.

The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.

His
Further
Voluntary
statement is already recorded. As per the information provided
by the petitioner he is 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:
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ORDER
The Petition filed by the petitioner U/Sec.439 of
Cr.P.C is hereby allowed.
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.

The petitioner shall give attendance
before the concerned I.O., once in a
month i.e., preferably on first Monday of
every month in between 10.00 am., to
2.00 pm., till filing of charge sheet or
further orders whichever is earlier.

2.

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

3.

He shall not tamper the witness or
abscond.

4.

He shall co­operate
investigation.

5.

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

6.

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

7.

He shall appear before the court on all
hearing dates.

with
I.O
for
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8.

CCH­33
Crl.Misc.No.7131/2022
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 27th day of July 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.