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 DECEMBER 2022
Crl.Misc.No.12196/2022
Petitioner :
(accused No.1)
Sanjay Barohi, S/o.Ramananda
Barohi, a/a 35 years, Presently R/at
Construction House, Near Metro
Station, Yelachenahalli, Bengaluru
Permanently R/at Dangibudo Village,
Jardari Post, Khusethala Taluk, Uttar
Dinsaspur District, Pashimbangala
(By Sri.Jagadeesha.H.Adv.)
V/S.
Respondent :
State by Cottonpet 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.190/2022 of
2
Cottonpet
PS.,
registered
for
the
offence
punishable
U/Sec.20(B) of NDPS Act.
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 1 Kg 300 gram of ganja
CCH33
Crl.Misc.No.12196/2022
3
from the possession of the accused. The accused is found to
be in possession of narcotic substance. A detailed mahazar is
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
4
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: he PSI of
Cottonpet PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On
09/12/2022
at
about
1:15
p.m.,
when
the
complainant was discharging duties in the station he has
received credible information through an informant that one
person is possessing contraband and selling it to the public at
Peer Boundry with in the jurisdiction of respondent police
station.
He has noted the information in the Station house
diary obtained permission from the higher officer to conduct
raid. He has called the panchas to the station. He along with
panchas and staff had been to the spot at around 1.45 pm.,
and mounted surveillance, confirmed the information and
prepared record of reasons. One person was selling ganja at
Peer Boundary by keeping in plastic cover and small small
packets
holding
in
hand.
He
was
surrounded
and
apprehended. On enquiry he has revealed his name as Sanjay
Barohi, S/o.Ramananda Barohi, R/o Dangibudo Village,
5
CCH33
Crl.Misc.No.12196/2022
Jardari Post, Khusethala Taluk, Uttar Dinsaspur District,
Pashimabangala.
On enquiry he has revealed that he is
possessing ganja. When the small packets which were found
in the plastic cover of accused is opened,
it was containing
ganja, when it was weighed the weight came around 1 Kg 300
grams.
The accused was arrested.
A detail mahazar was
drawn in the spot. He was brought to Police Station a report is
submitted before the SHO. Basing on the said report a case in
Cr.No.190/2022 is registered against the accused for the
offence punishable U/s.20(B) of NDPS Act.
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.
6
9. It is argued by the prosecution that the petitioner has
committed heinous offence 1 Kg 300 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
09.12.2022 complainant has conducted raid and apprehended
accused. On looking to the seizure panchanama the drugs
seized from accused is weighing 1 Kg 300 grams of ganja. 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.55 the narcotic drugganja 1000 grams is
small quantity and 20 Kgs., is commercial quantity.
In this
case the quantum of ganja seized is 1 Kgs. 300 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:
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Crl.Misc.No.12196/2022
7
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 1 Kg 300 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
8
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:
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.
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CCH33
Crl.Misc.No.12196/2022
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
photo ID proof of his sureties.
7.
He shall appear before the court on all
hearing dates.
8.
Breach of any of the conditions by the
petitioner would entail cancellation of bail.
with
I.O
for
[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 December 2022)
CN/*
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.