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 January 2023
Crl. Misc.No.12391/2022
Abdul Majeed Madathum Kuzhiyil,
S/o
Madathum
Kuzhiyil
Pavir
kutty,aged 53 years, R/at no.2, steet
912,Zone No. 37, Al Hakm Bin
Maneet St., Doha,
Qatar.
Permanent Address:
Madathum Kuzhiyil House,
Kizhakkoth P.O., Koduvally,
Kozhikode, Kerala 673572
(By Sri Binu., Adv.)

Petitioner :
(accused)
V/S.
State by NCB Police
Respondent :
(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
NCB..No,48/1/6/2022 of BZU., registered for the offences
2
punishable U/Section 22(b), 23(c), 27,28 and 29 R/w 8(c) of
N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:That the petitioner is very 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. The petitioner contends that, at the
time of the alleged incident the petitioner was in Qatar. The
consignor, accused No.1 is unknown to the petitioner and
the petitioner’s identity card has been misused by the
petitioner’s known person one Sri. Mansoor, who was
working at Doha as a Taxi driver along with accused No.1 to
book the alleged consignment for Sri. Mansoor. It is
contended that from the voluntary statement of the
petitioner it is very clear that the accused No.1 is unknown
to the petitioner and one Sri. Mansoor, who was working as
Taxi driver, had taken his Qatar Residency identity card for
booking the said parcels to Doha. Only based on the
voluntary statement of the accused No.1 the respondent has
3
CCH­33
Crl.Misc.12391/2022
implicated the petitioner in the alleged crime. It is
contended that there is no materials placed on record to
show that, this petition is guilty of the offences, he has been
made only as scapegoat to the alleged crime, only to suit the
offences, no prima facie case made out against him. It is
contended that already investigation is completed and
charge sheet is filed. No charge sheet material reveals that
the petitioner was involved in the alleged offences along with
other accused and the petitioner’s identity card was
misused by one Sri. Mansoor and accused No.1, to book the
alleged parcel, other than voluntary statement of co­accused
no material is available on record to show the involvement of
the present petitioner in the alleged crime. 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.
9. The prosecution while opposing the bail petition
contended that the I.O has seized 515 Gm of amphetamine
which is commercial quantity.

The said offences are
punishable with rigorous imprisonment for a term which
4
shall not be less than 10 years which may extend to 20
years and shall also be liable to fine. On 12.04.2021 based
on a secret and credible information sayed Nashath was
intercepted at Aramex courier agent at Mangalore i.e. Sonu
Enterprises # City Center Building, Opp. Roopa Hotel,
Balmatta Road, Hampanakatta, Mangalore 575001 and was
summoned to NCB office to record his statement in
connection to seizure of 515 grams Amphetamine. Based on
his voluntary statement and material evidence the accused
was arrested for committing offences punishable U/s.8(c)
r/w 22(c), 27, 28 and 29 of the NDPS Act 1985 on
13.04.2021 and produced before this Court on 14.04.2021
and was remanded to judicial custody. The NCB, Bangalore
taken remand of accused sayed Nashath for custodial
investigation with the permission of this Court for a period
of 5 days from 18.10.2021 to 22.10.2021 under P.C
Warrant. The statement of accused sayed Nashath was
recorded and produced before this Court on 21.10.2021 and
was remanded to judicial custody. An LOC was opened on
02.06.2021 to apprehent Abdul Majeed Madathum Kuzhiyil
(A2). The FRRO AFRRO (D), BOI, CSMIA, Mumbai intimated
CCH­33
Crl.Misc.12391/2022
5
through
Fax
message
dated
21.11.2022
regarding
interception of person named Abdul Majeed Madathum
Kuzhiyil under LOC at Mumbai and handed over to Sahar
police station, Mumbai and intimated to take for NCB
custody from Sahar police station Mumbai. The NCB,
Bangalore taken the said accused Abdul Majeed Madathum
Kuzhiyil (A2) from Sahar Police Station,
Mumbai on
23.11.2022 at 18.05 hrs and produced before this Court at
Bangalore on 24.11.2022 and further taken to NCB custody
for Two days. He was examined his statement came to be
recorded, basing on the voluntary statement he was
arrested on 25.11.2022 for commission of offences U/s.8(c)
r/w 22(c), 23(c), 27(A), 28 ad 29 of NDPS Act. If the
petitioner
is
granted
bail
he
may
tamper
with
the
prosecution witnesses. He may involve himself in similar
offences. Investigating agency by complying the provisions
prevailed under the act has seized the contraband from the
petitioner. The petitioner 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 petitioner.

6
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 Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:­ The IO of NCB Bangalore., has put
the criminal law into motion.

The gist of the allegation
reads as here under:­
On 08.04.20221 at around 18 hrs IO NCB has
received Credible information through Telephone from
Aramex Indian Pvt. Ltd., that one parcel bearing shipment
airway bill No.(AWB) 30806899675 suspected to be narcotic
drug, has been detain by them. The said information has
been reduced to writing submitted to superintendent
CCH­33
Crl.Misc.12391/2022
7
obtained permission to conduct search. IO NCB has secured
panchas, staff members and went to the spot. As per the
instructions of higher officers, IO NCB and his team with
necessary equipment reached Aramex, India Pvt. Ltd office
at No.30/1 Indiara Niwas, Parkview layout, Amruthalli Main
Road Bangalore
08.04.2021.

– 560092 at
Cartoon
box
around 19.00
bearing
airway
hrs
bill
on
No.

30806899675 was opened in the presence of independent
witnesses. On opening the Carton box it was found to
contain 02 Nos. of Cricket Thigh Guard (01 SG mark brand
and 01 SS mark brand), 02 Nos. of Elbow Guard (01 SG
mark brand). After that all the above items were thoroughly
examined by cutting it with the help of cutter, in which two
black coloured polythene were found concealed inside both
the Cricket Thigh Guard. One of the black coloured
polythene was cut opened and found to contain off white
coloured crystalline substance in it. A small pinch of white
coloured crystalline substance was taken and tested with
the help of Drug detection Kit, which gave positive result for
Amphetamine
(a
psychotropic
substance
under
the
provision of NDPS Act, 1985). Thereafter, the contraband as
8
referred in detail in the remand report is recovered. A detail
mahazar is drawn.
After issuing notice to the consigner Syed Nashath
who is the accused No.1 in the case, his statement was
recorded. In his statement he has revealed about the
booking of parcel of contraband. He has also stated that on
the instructions of his uncle Abdul Ajeed Madathum
kuzhiyil who is working in Quatar he has booked that
parcel. He has identified, recognized and endorsed his
signature on the photo copy of the parcel containing Thigh
guards in which drugs were consealed. He had the
knowledge of drug concealed inside the parcel. He has also
stated
about
the
consumption
of
drugs
by
him.

Incriminating substance was seized under detail mahazar.
The accused was arrested and a detail report is submitted.
Basing on the report, a case in NCB.Cr.No,48/1/06//2022
of BZU., registered for the offences punishable U/Section
22(b), 23(c), 27,28 and 29 R/w 8(c) of N.D.P.S. Act.
The NCB, Bangalore taken remand of accused sayed
Nashath for custodial investigation with the permission of
this Court for a period of 5 days from 18.10.2021 to
9
CCH­33
Crl.Misc.12391/2022
22.10.2021 under P.C Warrant. The statement of accused
sayed Nashath was recorded and produced before this Court
on 21.10.2021 and was remanded to judicial custody. An
LOC was opened on 02.06.2021 to apprehend Abdul Majeed
Madathum Kuzhiyil (A2). The FRRO AFRRO (D), BOI,
CSMIA, Mumbai intimated through Fax message dated
21.11.2022 regarding interception of person named Abdul
Majeed Madathum Kuzhiyil under LOC at Mumbai and
handed over to Sahar police station, Mumbai and intimated
to take for NCB custody from Sahar police station Mumbai.
The NCB, Bangalore taken the said accused Abdul Majeed
Madathum Kuzhiyil (A2) from Sahar Police Station, Mumbai
on 23.11.2022 at 18.05 hrs and produced before this Court
at Bangalore on 24.11.2022 and further taken to NCB
custody for Two days. He was examined his statement came
to be recorded basing on the voluntary statement he was
arrested on 25.11.2022 for commission of offences U/s.8(c)
r/w 22(c), 23(c), 27(A), 28 ad 29 of NDPS Act.

8. It is argued by the prosecution that the petitioner
has committed heinous offence and it is punishable with RI
upto 20 years. The petitioner may involve in similar offence,
10
if he is released on bail.

There are prima­facie material
available against him.

10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 515 Grams of amphetamine under the seizure
panchanama. 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.152 the narcotic
drug ­Amphetamine weighing 50 grams is a commercial
quantity. In the present case 515 grams of Amphetamine
narcotic substance is seized which is a commercial quantity.
In the instant case basing on the voluntary statement of A1
present petitioner is arrested. The address of present
petitioner is furnished by A1. A1 has revealed in his
statement that several other persons are involved in drug
trafficking. The present petitioner is stated to be the uncle of
A1 who is working in Quatar. A1 has stated that basing on
the instructions of his uncle he has concealed the drug in
the parcel. The address of present petitioner is furnished by
11
CCH­33
Crl.Misc.12391/2022
A1 it is stated by A1 that as per the instructions of his uncle
he is doing drug trafficking. The contention advanced by the
learned counsel for petitioner that petitioner had no
knowledge of drug trafficking and he is not related to A1 is
without any basis. Basing on the statement of A1 and
basing on the address available in the parcel LOC was
opened and present petitioner was apprehend.

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
12
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.
Given the seriousness of offences punishable under the
NDPS Act and in order to curb the menace of drug­
trafficking 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 non­application 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
13
CCH­33
Crl.Misc.12391/2022
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 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
14
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 “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 himself 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 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 :
15
CCH­33
Crl.Misc.12391/2022
“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 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 behind bars during the
pendency of the proceedings before the court, and the
16
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
petitioner is not guilty and that he is not likely to commit
any offence while on bail. In this case, in all 515 Grams of
amphetamine seized
from the accused No.1. As per
Sl.No.152 the narcotic drug ­ amphetamine weighing 50
grams is a commercial quantity. In the present case 515
grams of amphetamine narcotic substance is seized which is
a commercial quantity. At this stage, there is primafacie
material available against the present petitioner about his
active involvement in booking of drug parcel seized in the
case. The learned counsel for petitioner has failed to place
any material before this court that he had no knowledge of
booking of drug parcel involved in the case. In the result, I
proceed to hold that the petitioner herein has not made out
any grounds to entertain his plea for bail. Accordingly, I
answer point No.1 in the negative.

17
CCH­33
Crl.Misc.12391/2022
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 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 27th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.