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 4th DAY OF APRIL 2024
Crl. Misc.No.2595/2024
Petitioner :
(accused)
Soheb Nawab, S/o.late Mumtaz
Ali Nawab, 43 years, No.49, 2nd
Cross, CKS Garden, Lalbagh
road, Suddamangar Bangalore.
(By Sri. AR., Adv.)
V/S.
Respondent :
State by J J Nagar 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.142/2023
and Spl.CC.2406/2023 of J J Nagar PS., registered for the
offences punishable U/Sec.8(c), 22(c),20(b)(ii)(B) of NDPS
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 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 investigation is concluded
and charge sheet is filed. Further detention of petitioner is
not warranted. The FSL report is received in the case and
sample
sent
for
analysis
answered
positive
for
metamphetamine. The metamphetamine seized in the case
is intermediary. 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 50 grams of MDMA
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CCH33
Crl.Misc.No.2595/2024
Crystal and 1 kg Hashish oil and 1 Kg 100 Grams ganja
from the accused. The offence alleged against the petitioner
is 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 petitioner. He is
habitual drug dealer. There is primafacie case made out
against petitioner. If petitioner is 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
regular 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:
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REASONS
7. POINT NO.1: The PSI, J J Nagar PS., Bangalore
has put the criminal law into motion.
The gist of the
allegation reads as here under:
On 15/07/2023 at about 12.30 pm., the complainant
has received an information through an informant that near
Edga ground main door Left Side, Mysore road JJ Nagar
Bengaluru a person is selling drugs to the public and
students.
On receipt of the information, he has informed
the matter to the higher officer, obtained permission to
conduct raid. He along with panchas and staff had been to
the spot and mounted surveillance in the spot and found
the suspected person. They apprehended him and on
enquiry he has revealed his name and address as Shooter
Salman, resident of Jayanagar. On questioning further he
has admitted that he is possessing MDMA, hashish oil and
ganja. On personal search of the accused they found 50
Grams of MDMA Crystal, 1 kg Hashish oil and 1 Kg 100
Grams ganja. The said contraband articles are seized.
Thereafter, a detail seizure panchanama was drawn. The
accused is arrested and produced brought to the Police
CCH33
Crl.Misc.No.2595/2024
5
Station.
A detail report was prepared & submitted before
SHO which is the basis to register the case against the
accused in Cr.No.142/2023 is registered for the offence
punishable
U/Sec.8(c),
22(c),20(b)(ii)(B)
of
NDPS
Act.
Thereafter the accused was produced before jurisdictional
Magistrate and remanded to JC.
Now the investigation is
concluded and charge sheet is filed.
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 the Act
are not complied. The FSL report is received in the case and
sample
sent
for
analysis
answered
positive
for
metamphetamine instead of MDMA. The metamphetamine
seized in the case is intermediary. He is permanent resident
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.
9. It is argued by the prosecution that the petitioner
has committed heinous offence 50 Grams of MDMA Crystal
and 1 kg Hashish oil and 1 Kg 100 Grams ganja is seized
6
from
the
petitioner.
The
offence
is
punishable
with
imprisonment upto 20 years and with fine. There are
primafacie material available against him.
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency alleged to have seized 50 Grams of MDMA.
Now in
the present bail petition it is contended that the article
which is sent for FSL analysis responded positive for the
presence of metamphetamine.
Therefore, it is contended
that 50 grams of metamphetamine seized in the case has to
be taken into consideration and not the property shown in
PF and the mahazar. On looking to the FSL report article
had answered positive for the presence of metamphetamine.
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.159
the
narcotic
drug
methamphetamine 2 grams is small quantity and 50 grams
is commercial quantity.
In this case the quantum of 50
grams of Methamphetamine seized is an intermediate
quantity. As per sec.2(viia) commercial quantity in regard to
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CCH33
Crl.Misc.No.2595/2024
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 commercial
quantity.
In
view
of
sec.2(viia)
the
50
grams
of
metamphetamine which is seized in the present case could
not be termed as commercial quantity. That apart, 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 is not 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.
8
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 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 50 grams
of metamphetamine could not be termed as commercial
CCH33
Crl.Misc.No.2595/2024
9
quantity. Likewise, Hashish oil seized 1 Kgs., also cannot
be termed as commercial quantity.
11. The petitioner herein is in judicial custody since
the date of arrest. Investigation is concluded.
Further
custodial
in
interrogation
is
not
warranted
circumstances of the case. Recovery is already made.
the
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 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
executing
personal
is
enlarged
bond
for
on
a
bail
on
sum
of
Rs.1,00,000/ with two sureties for the like sum
with following conditions.
1.
He shall not leave the jurisdiction of this
court without prior permission.
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2.
He shall not tamper the witness or
abscond.
3.
He shall not commit similar offence or
any offence while on bail.
4.
He shall furnish his photo ID proof and
photo ID proof of his sureties.
5.
He shall appear before the court on all
hearing dates.
6.
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 4th day of April 2024]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*