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 7th DAY OF DECEMBER 2022
Crl. Misc.No.11686/2022
petitioner :
(accused No.1)
Sherwin.M.S, S/o.lagte Satish Babu,
a/a 27 years, R/at No.4, Ground
Floor, Opp. JP Layout,
Yemalur,Bengaluru­560037
(By Sri . Pholomena Ross., Adv.)
V/S.

Respondent :
State by Cubbon Park Police
(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.104/2022
registered for the offences punishable U/s.22(c) of N.D.P.S.
Act.

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

No
incriminatory
article
is
seized
from
the
possession of the petitioner herein. There is no restriction
U/Sec.37 of N.D.P.S. Act for grant of bail. The petitioner is
permanent resident of the address shown in the cause title.
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.
Hence, sought to grant bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 10 grams of MDMA from
accused No.1 and 3 grams of MDMA from accused No.2. The
offences alleged against the petitioner is punishable with
3
CCH­33
Crl.Misc.No.11686/2022
rigorous imprisonment for a term which shall not be less than
10 years which may extent to 20 years and shall also be liable
to fine.

There is a primafacie case available against the
petitioner. He is habitual drug dealer. There is primafacie case
made out against petitioner. If petitioner are released on bail,
he will continue the profession of narcotic drug selling, and he
may abscond and tamper evidence of the prosecution. 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:
4
REASONS
7. POINT NO.1:­
The WPSI., of Cubbon Park PS.,
Bengaluru has put the criminal law into motion. The gist of
the allegation reads as here under:­
On 13.10.2022 at about 2.00 pm., when the complainant
was on patrolling duty she has received credible information
that at Siddlingaiah Circle, Cubbon park Central Library road
one person who is going in his two wheeler is selling MDMA
contraband to the public.

If the complainant PSI visits the
spot he would be apprehended. The complainant on receipt of
information, informed the matter to the higher officer, obtained
permission to conduct raid. She along with panchas and staff
had been to the spot and mounted surveillance. One person
was standing there. He was apprehended and enquired. He
has stated that his name is Sherwin M S. On enquiry he has
stated
that
he
has
purchased
MDMA
from
one
Deva
Ashirvadam and Renukanandan of Bengaluru. He has given
his full address.

She has also called gazetted officer to the
spot to conduct personal search of accused.

On conducting
CCH­33
Crl.Misc.No.11686/2022
5
the search of accused No.1 ­ 10 grams of MDMA was
recovered. He was arrested. Contraband was seized under the
mahazar. While interrogation accused No.1 has stated that he
has purchased contraband from accused Nos.2 and 3. As per
the say of accused No.1,
accused No.2 was arrested on
26.10.2022. At his instance 3 grams of MDMA was seized. He
was arrested, produced before the court and remanded to
judicial custody. On arrest of accused No.1, case is registered
in Cr.No.104/2022 against accused Nos.1 to 3 for the offences
punishable U/s.22(c) of NDPS Act. The present petitioner is
arrayed as accused No.1 in this case.
8. It is argued by the learned counsel for petitioner that
he is planted in the case by the complainant he is unaware of
seized drug.

The seized article is not commercial quantity.

Therefore, NDPS Act is not applicable.

9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were seized from his
custody.

The
offence
alleged
against
the
petitioner
is
punishable with imprisonment upto 20 years and he is
6
habitual offender. In the event of release on bail he may
abscond and hamper the investigation. There are prima­facie
material available against him.

10. On careful perusal of material available on record, 10
grams of MDMA have been seized from the possession of
accused No.1 on 13.10.2022.

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.134 the narcotic drug ­ MDMA weighing 10 grams is a
commercial quantity. In the present case 10 grams of MDMA
narcotic substance is seized.
quantity
in
regard
to
As per sec.2(viia) commercial
narcotic
drugs
and
psychotropic
substances means any quantity greater than the quantity
specified by the central govt., by notification in the official
gazetteer.

In this case as per the table referred above, 10
grams of MDMA is a commercial quantity, if we look into
section 2(viia) any quantity greater than the quantity specified
in the central govt., notification should have to be treated as
CCH­33
Crl.Misc.No.11686/2022
7
commercial quantity.

In view of sec.2(viia) the 10 grams of
MDMA which is seized in the present case could not be termed
as commercial quantity. That apart, in the unreported decision
of Hon’ble High Court in Crl.Petition No.849/2013 in the case
of
Ashley
Braison
D
Souza
Vs.,
State
of
Karnataka
dt.21.3.2013 wherein it is discussed as here under:­
“2. The Notification issued under the NDPS Act, in item
No.133 defines the small quantity as “0.002” and
commercial quantity as “0.1 gram”. The LSD paper found
with the petitioner isnot a commercial quantity. the MDMA
powder found with the petitioner falls under item No.138 of
the Notification. 10 grams is shown to be commercial
quantity but the definition of commercial quantity under
Sec.2(viia) declares that any quantity grater than the
quantity specified by the Central government by
Notification is the official Gazette.
3. In view of the definition, it has to be held that
possession of MDMA powder of 10 grams cannot be
considered as commercial quantity. in that view of the
matter, Section 37 of the NDPS Act would not apply.
Accordingly, petition is allowed.”
Further in the decision reported in 2015 SCC online Ori
361 in Anil Kumar Das Vs., State of Orissa wherein it is
observed:­
Even though in column No.6 the table under the heading of
commercial quantity, 20 Kg., has been mentioned but in
view of clause (viia) of Section 2 of the NDPS Act, 20 Kg., of
8
ganja will not come within the definition of “commercial
quantity”. commercial quantity in respect of ganja is to be
greater than the quantity specified in the aforesaid
notification
which
would
mean
any
quantity
more
than/bigger than/larger than 20 kg.

On looking to the aforesaid judgment of Hon’ble High Courts
and on looking to Sec.2(viia) of NDPS Act where the
commercial quantity has been described as the narcotic
substance which is greater than the quantity specified by the
notification of central govt., in the official gazette the NDPS
substance seized in the present case that is 10 grams of
MDMA could not be termed as commercial quantity.
11. The petitioner herein is in judicial custody since the
date of arrest. The petitioner No.2 has already been enlarged
on bail by this court. The major portion of the investigation is
concluded. Further custodial interrogation is not warranted in
the circumstances of the case. Recovery is already made.

On
looking to the nature and gravity of allegations leveled against
the petitioner if by imposing stringent conditions he is enlarged
on bail it would not in any way hamper the investigation. In
CCH­33
Crl.Misc.No.11686/2022
9
the result, I proceed to answer the point No.1 in the
affirmative.
12. 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.

3.

He shall
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.

not
tamper
the
with
witness
I.O
or
for
10
8.

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 7th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*