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 12th DAY OF DECEMBER 2022
Crl. Misc.No.11771/2022
Petitioners :
(accused Nos.1 & 2)
1. Shias S/o.Taha, a/a 38 years,
R/at Muvattupuja, Vallur
Kunnam Post, Ernakulam
Distirct, Kerala State.
2. Muhammad Shahid, S/o.Salam,
a/a 30 years, R/at Nepisa
Manzil, Pappaniseri post, Kannur
District, Kerala State.
(By Sri.Girish.R, Adv.
V/S.

Respondent :
State by HSR Layout PS.
(By learned Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.210/2022 of HSR
2
Layout
Police Station registered for the offences punishable
U/Section 20(b) of NDPS Act and Sec 14 of Foreigners Act.

2. The grounds urged by the petitioners for grant of bail
are as under:
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 offences are 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. The petitioners are permanent
residents of the address shown in the cause title. The
petitioners are ready and willing to abide by any conditions
imposed by this court in the event of grant of bail. They are
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 191 grams of MDMA, 2 KG
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CCH­33
Crl.Misc.No.11771/2022
80 grams of Ganja. The offences alleged against the petitioners
are punishable with rigorous imprisonment for a term upto 20
years and shall also be liable to fine.

There is a primafacie
case available against the petitioners. They are habitual drug
dealers. There is primafacie case made out against petitioners.
If petitioners are released on bail, they will continue the
profession of narcotic drug selling, and they may abscond and
tamper evidence of the prosecution. Hence, sought to reject the
bail plea of petitioners.
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 petitioners have made out
sufficient grounds to enlarge them 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:
4
REASONS
7. POINT NO.1:­ The PSI of HSR Layout PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:­
On 19/09/2022 at 4.30 PM when the complainant was
on patrolling duty at 27th main road of HSR layout has received
credible information from the informant that for the past two
days two persons were standing in the 31 st Main Road, HSR
Layout, behind NIFT College carrying bag suspiciously. After
they leave the place there would be remnants of ganja leaves.
They would visit on Monday to sell the contraband. They are
aged
between
25­30
years.

On
confirming
about
the
information, PSI has registered a case in Cr.No.210/2022
against 2 unknown persons for the offences punishable
U/s.20(B) of NDPS Act. Thereafter, he has informed the matter
to the higher officer obtained permission to conduct raid, he
went to the spot along with panchas and found the suspected
persons moving there holding bags.

They were surrounded
and apprehended. On enquiry they have revealed their names
CCH­33
Crl.Misc.No.11771/2022
5
as Shiyas S/o.Taha, Mohammed Shaeed natives of Kerala
state.

During the search of bags and personal search 101
grams of MDMA is recovered. It was seized under the mahazar.
During search of bag of accused
No.2­2 Kgs., 80 grams of
ganja was seized. It was also seized under the mahazar. They
were arrested and produced before the court and remanded to
judicial custody.

The present petitioners are accused Nos.1
and 2 in the case.
8. It is vehemently argued by the learned counsel for the
petitioner that petitioner he is falsely implicated in the said
case. The quantity seized from the possession of the accused
is less than commercial quantity. The major portion of
investigation is concluded.

Custodial interrogation is not
warranted. He is entitled for bail.

9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were seized from his
custody. There are prima­facie material available against him.

6
10.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 191 grams of MDMA and 2 Kgs., 80 grams of
Ganja under the seizure panchanama. As per specification of
small
and
commercial
psychotropic
Department
substance
of
Revenue
quantity
issued
by
of
narcotic
Ministry
Notification
drug
of
S.O.1055(E)
or
Finance
dated
19.10.2001 Sl.No.134 the narcotic drug ­ MDMA weighing 10
grams is a commercial quantity. In the present case 191 grams
of MDMA narcotic substance is seized which is a commercial
quantity.

Basing on the voluntary statement of petitioners
herein accused No.3 is arrested. At his instance 90 grams of
contraband is seized.

It is argued by the learned counsel for petitioner that
search and seizure is not in accordance with law. IO has not
conducted any scientific test to assess that seized contraband
is MDMA.

Based on the smell the contraband is said to be
MDMA. Therefore, the petitioner has to be given the benefit of
bail.

The contentions raised by the learned counsel for
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CCH­33
Crl.Misc.No.11771/2022
petitioner could not be entertained at this stage as the
investigation in the case is pending.

The total quantum of
contraband seized in the case is 191 grams of MDMA which is
commercial quantity.

11.

The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. 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 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.

8
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 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.”
12. 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.

9
CCH­33
Crl.Misc.No.11771/2022
(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 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 co­
accused.

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.

In the recent judgment of Hon’ble Apex Court
in the
case of State of Kerala Vs., Rajesh in (2020) 12 SCC 122 it
is observed that
10
“reasonable grounds” means something more than prima
facie grounds. It contemplates substantial probable causes
for believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in 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 Hon’ble Apex Court in the case
of State of MP Vs., Kajad reported in 2001(7)SCC 673 while
considering an appeal against an order of the High Court
allowing the second bail petition of the respondent who was
petitioner under the NDPS Act 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 petitioner is not guilty of the
offences with which he is charged and further that he is 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 force regulating the grant
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CCH­33
Crl.Misc.No.11771/2022
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 petitioner is not
guilty of such offence and that he is not likely to commit any
offence while on bail alone will entitle him to a bail. In the
present case, the petitioner 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
petitioner or not. At this juncture, we cannot say that the
petitioner is 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 he is 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 petitioner 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
12
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
there are reasonable grounds for believing that the petitioners
are not guilty and that he is not likely to commit any offence
while on bail. Here in the present case the petitioners herein
were apprehended and 101 grams of MDMA and 2 Kgs., 80
grams of ganja is seized from them. The quantity of
contraband is commercial quantity. At this stage, there is
primafacie material available against the petitioners in regard
to the possession of narcotic drug.

The learned counsel for
petitioner has failed to place any material before this court that
he was not in possession of NDPS article at the time of their
apprehension and search. In the result, I proceed to hold that
the petitioners herein has not made out any grounds to
entertain their plea for bail. Accordingly, I answer point No.1 in
the negative.

CCH­33
Crl.Misc.No.11771/2022
13
15. Point No.2:­
following:
In the result, I proceed to pass
ORDER
The petition filed by the petitioners 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 12th day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*