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 16th DAY OF SEPTEMBER 2022
Crl. Misc.No.8028/2022
petitioners :
(accused No.1 to 3)
1. Samarakara, S/o Madhukara,
Aged about 22 years,
R/at: A/P Jayantagiri, Machkund
Taluk, Koraput District, Odessa
State, Koraput, Orissa.
Vittalmudnur Village,
Bantwala Taluk, D.K.
2. Ramesh Kemundi, S/o Bagavan,
Aged about 25 years,
R/at: Myangiri, Post Raisin,
Padava Police Station,
Korap, Odessa State,
Koraput, Orissa.
3. Mangul Sisa,
S/o Nada Sisa,
Aged about 20 years,
R/at: Myangril Village,
Raisin Post, Padava Police Station,
Odessa State, Koraput, Orissa.
(By Sri.Santosh T., Adv.)
2
V/S.
Respondent :
State of Karnataka by Govindapura
Police Station, Bengaluru.
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners No.1 to 3 to enlarge them on bail, in Cr.No.44/2022
for the offence punishable U/Sec.20(C) of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:
That the petitioners are innocent and law abiding
citizens. They have not committed any offence much less the
offence as alleged.
They have 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 petitioners have also having got deep
roots in the society and they are residents in the above cause
title. The procedure contemplated under N.D.P.S. Act not
followed
while
recovery.
The
quantity
seized
from
the
possession of the petitioners is less than commercial quantity.
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The petitioners is ready and willing to abide by any conditions
imposed by this court in the event of grant of bail. They are
ready to offer sureties 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 290 Kgs., of ganja which is a
commercial quantity. There are sufficient material available
against the petitioners, 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 his
release he may tamper with the prosecution witnesses.
Incriminatory articles were seized from his custody.
involve himself in similar offences.
He may
Investigating agency by
complying the provisions prevailed under the act has seized
the contraband from the petitioners.
The petitioners 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 petitioners.
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4. Heard learned counsel for the petitioners and the
prosecution.
5. The points that arise for my consideration are as here
under:
1. Whether petitioners have 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 Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The PSI of Govindapura PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:
On 07.04.2022 at about 4:00 pm., when the complainant
was in the police station he has received an information that
within the limits of his police station that in HBR Layout, 1 st
stage, 5th Block backside of forest office road in a vacant site
on a small road, three persons were in possession of ganja and
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5
they were trying to sell it to public.
On receipt of the said
information, the PSI has informed the matter to ACP, obtained
the permission to conduct raid. He has called the panchas.
He along with panchas and staff had been to the spot around
5.10 pm.
The informant has shown the said persons. The
complainant along with staff entered the room of the said
persons and surrounded them. On enquiry they have revealed
their names and address. They are the natives of Orissa. On
further probing they have revealed that they are in possession
of contraband ganja.
ACP was called to the spot, personal
search of accused was conducted in the presence of ACP.
During the search of the room of the accused persons 290
Kgs., of ganja was found.
It is was seized under a detail
mahazar. Accused were arrested. A detail report is prepared
submitted before SHO.
The said report is the basis to the
register case is against Accused in Crime No.44/2022 for the
offence punishable under Sec.20(C) of NDPS Act.
petitioners herein are accused Nos.1 to 3 in the case.
The
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8.
The learned counsel for petitioners argued that the
investigating agency has not followed proper procedure while
conducting raid. They are innocent and falsely implanted in
the case. The present petitioners are women. They are in no
way connected to the crime. In the event of grant of bail they
are ready to offer solvent sureties for their due appearance
before the court.
9. The prosecution contends that
290 Kgs., of Ganja,
seized from the present petitioners which is commercial
quantity. The petitioners are habitual drug peddlers. In the
event of their release they may abscond and may repeat the
crime and there is every possibility of absconding of the
petitioners. The offences alleged are punishable U/s.20(C) of
N.D.P.S. Act is punishable with RI upto 20 years. The
petitioners are not entitled for bail.
On looking to the prosecution papers the quantum of
narcotic
substance
seized
290
Kg
of
Ganja.
As
per
specification of small and commercial quantity of narcotic drug
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Crl.Misc.8028/2022
7
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 drug – Ganja weighing
1000 grams is small quantity and 20 kgs is a commercial
quantity. In the present case ganja seized is weighing 290 kgs
which is commercial quantity.
Further more the petitioners
herein were apprehended with the contraband ganja in the
place of incident. Their voluntary statement is recorded. Huge
quantum of contraband is in their conscious possession.
10. At this stage, it is necessary for me to refer to the
judgment of Hon’ble Apex Court in Crl.Appeal No.1043/2021
dated 22.9.2021 in the case Union of India through NCB.,
Lucknow Vs., Mohammed Nawaz Khan wherein the NCB.,
Lucknow has challenged the order of grant of bail to the
accused by the Hon’ble High Court of Allahabad, Lucknow
Bench. In the said case the Hon’ble Apex Court pleased to
make a detail discussion on the criteria to be considered for
grant of bail when the accused is prosecuted under the
provisions of NDPS Act.
At para20 of the judgment the
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Hon’ble Apex Court pleased to note that the High Court and
this court are required to apply while granting bail is whether
there are reasonable grounds to believe that the accused has
not committed an offence and whether he is likely to commit any
offence while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb the menace
of drugtrafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed. In the
present case, the High Court while granting bail to the
respondent adverted to two circumstances, namely (i) absence
of recovery of the contraband from the possession of the
respondent and (ii) the wrong name in the endorsement of
translation of the statement under Section 67 of the NDPS Act.
As regards to the finding of Hon’ble High Court regarding
absence of recovery of the contraband from the possession of
the respondent, we note that in Union of India v. Rattan Mallik,
a twojudge Bench of this Court cancelled the bail of an accused
and reversed the finding of the High Court, which had held that
as the contraband (heroin) was recovered from a specially made
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Crl.Misc.8028/2022
cavity above the cabin of a truck, no contraband was found in
the ‘possession’ of the accused. The Court observed that merely
making a finding on the possession of the contraband did not
fulfill the parameters of Section 37(1)(b) and there was non
application of mind by the High Court. In line with the decision
of this Court in Rattan Mallik (supra), we are of the view that a
finding of the absence of possession of the contraband on the
person of the respondent by the High Court in the impugned
order does not absolve it of the level of scrutiny required under
Section 37(1)(b)(ii) of the NDPS Act.
Further in regard to non compliance of the procedure
laid U/s.42 of NDPS Act, it is held by the Hon’ble Apex Court
that it is a question of fact. Further, at Para30 the Hon’ble
Apex Court pleased to make the following essential elements
ought to have been considered by the Hon’ble High Court of
Lucknow.
(i) The respondent was traveling in the vehicle all the way
from Dimapur in Nagaland to Rampur in Uttar Pradesh
with the coaccused;
(ii) The complaint notes that the CDR analysis of the mobile
number used by the respondent indicates that the
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respondent was in regular touch with the other accused
persons who were known to him;
(iii) The quantity of contraband found in the vehicle is of a
commercial quantity; and
(iv) The contraband was concealed in the vehicle in which
the respondent was traveling with the coaccused.
By making a detail observation in granting the bail to the
accused is incorrect and has set aside the impugned order.
The aforesaid recent judgment of Hon’ble Apex Court
clearly highlights on the aspect that what are all the
circumstances to be considered and has to be evaluated by the
court to consider the bail plea of the accused.
11.
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances.
Hon’ble Apex Court
In the recent judgment of
in the case of State of Kerala Vs.,
Rajesh in (2020) 12 SCC 122 it is observed that
“reasonable grounds” means something more than
primafacie grounds. It contemplates substantial probable
causes for believing that the accused is not guilty of the
alleged offence. The reasonable belief contemplated in
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the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case on hand, the High Court seems to
have completely overlooked the underlying object of
Section 37 that in addition to the limitations provided
under the CrPC, or any other law for the time being in
force, regulating the grant of bail, its liberal approach in
the matter of bail under the NDPS Act is indeed uncalled
for.
Further in the judgment of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001 (7) SCC
673 has held that :
“5. ………….. Negation of bail is the rule and its grant an
exception under subclause (ii) of clause (b) of Section 37(1).
For granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable
grounds for believing that the petitioners are not guilty of the
offences with which they are charged and further that they
are not likely to commit any offence while on bail. It has
further to be noticed that the conditions for granting the bail,
specified in clause (b) of subsection (1) of Section 37 are in
addition to the limitations provided under the Code of
Criminal Procedure or any other law for the time being in
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force regulating the grant of bail. Liberal approach in the
matter of bail under the Act is uncalled for.”
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:
“3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the petitioners are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them to a bail. In
the present case, the petitioners attempted to secure bail on
various grounds but failed. But those reasons would be
insignificant if we bear in mind the scope of Section 37(1)(b) of
the Act. At this stage of the case all that could be seen is
whether the statements made on behalf of the prosecution
witnesses, if believable, would result in conviction of the
petitioners or not. At this juncture, we cannot say that the
petitioners are not guilty of the offence if the allegations made
in the charge are established. Nor can we say that the
evidence having not been completely adduced before the
Court that there are no grounds to hold that they are not
guilty of such offence. The other aspect to be borne in mind is
that the liberty of a citizen has got to be balanced with the
interest of the society. In cases where narcotic drugs and
psychotropic substances are involved, the petitioners would
indulge in activities which are lethal to the society. Therefore,
it would certainly be in the interest of the society to keep such
persons behind bars during the pendency of the proceedings
before the court, and the validity of Section 37(1)(b) having
been upheld, we cannot take any other view.”
As per the enunciation of law in the afore said dictums it is
clear that no person shall be granted bail unless the two
conditions are satisfied, i.e., the satisfaction of the court that
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Crl.Misc.8028/2022
there are reasonable grounds for believing that the petitioners
are not guilty and that they are not likely to commit any
offence while on bail. Here in the present case the petitioners
were apprehended and 290 Kgs., of Ganja, was seized from
HBR Layout, 1st stage, 5th Block backside of forest office road
in a empty site. The quantity of the contraband is commercial
quantity. At this stage, there are primafacie materials available
against the petitioners in regard to the possession of narcotic
drug. Commercial quantity of contraband is seized.
At this
stage, no material placed on record by the defence to show that
the accused are no way connected with the contraband which
is seized from the mobiles of the accused/petitioners herein.
In the result, I proceed to hold that the petitioners herein have
not made out any grounds to entertain their plea for bail.
Accordingly, I answer point No.1 in the negative.
12. Point No.2: In the result, I proceed to pass following:
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ORDER
The petition filed by the petitioners No.1 to 3 U/Sec.439 of
Cr.P.C is hereby rejected.
[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 16th day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.