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 24th DAY OF AUGUST 2022
Crl. Misc.No8038/2022
Petitioners :
(accused)
1. SRINIVAS,
S/o.Narayanaswamy,Aged
About 26 years, R/at Old No.4,
New No.16, 1st Cross, New
Byappanahalli,
Bengaluru­
560038
2. MOHAMAD AJMAL, S/o.Abdul
Rehaman, Aged about ___
Years, R/at No.101, 1st B
Cross, Urana Apartment,
Kaggadasapura, Byappanahalli,
Bengaluru­560038
(By Sri G.N., Adv.)
V/S.

Respondent :
State by Byappanahalli Police
Station.
(By Public Prosecutor)
2
ORDER
The petitioners have filed this petition U/Sec.439 of
Cr.P.C., to enlarge them on bail, in Crime No.102/2022 of
Byappanahalli Police Station
registered for the
offences
punishable U/Section 20­B, 21(b) of N.D.P.S. Act.
2. The grounds urged by the petitioners for grant of bail
are as under:
That the petitioners are very innocent and law abiding
citizen. They have not committed any offence much less the
offences as alleged. They are 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 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.

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CCH­33
Crl.Misc.No.8038/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 3 Kgs., of ganja and 17
grams of MDMA from the possession of the accused persons.
The offence alleged against the petitioners are punishable with
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
petitioners. they are habitual drug peddlers. If the 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 has made out
sufficient grounds to enlarge them on
bail?
2. What order?

4
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 PSI of Byappanahalli PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:­
On 29.07.2022 at 1.00 pm., when the complainant was
in the police station he has received credible information that
near BEML compound, Suranjan Das Road, Byappanahalli
Bangalore two persons are trying to sell narcotic drug to the
customers. After receiving the information he has informed to
his superior officer obtained permission and he along with
panchas and staff went to the spot and apprehended the
accused persons. On enquiry they have revealed their names
and addresses. On search of the scooter and petitioners they
have found 3 Kgs., of ganja and 17 grams of MDMA. The said
articles were seized under detail mahazar and accused was
arrested and a detail report is submitted. Basing on the report,
a case in Cr.102/2022 is registered for the offences punishable
CCH­33
Crl.Misc.No.8038/2022
5
U/S. 8(c), 21(c) of NDPS Act. The accused are produced before
the Court and remanded to JC. The present petitioners are
accused Nos.1 and 2.

9. The prosecution contends that 3 Kgs., of ganja and 17
grams of MDMA seized from the present petitioners which is
commercial
quantity.

The
petitioners
are
habitual
drug
peddlers. In the event of their release they may abscond and
may repeat the crime and there is every possibility of
absconding of the petitioners. The offences alleged are
punishable U/s.,20­B, 21(b) of N.D.P.S., Act are punishable
with RI upto 20 years. The petitioners are not entitled for bail.

10. It is contended by the petitioners that they are not
involved in the alleged offence. The implication of the
petitioners is false and without any basis. The petitioners are
implicated without any due enquiry. In the event of grant of
bail they are ready to offer solvent sureties for their due
appearance before the court. On looking to the prosecution
papers the quantum of narcotic substance seized 3 Kgs., of
6
ganja and 17 grams of MDMA. 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 05 grams is
small quantity and 10 grams is a commercial quantity. In the
present case MDMA seized is weighing 17 grams which is
commercial quantity. Further more the petitioners herein were
apprehended with the contraband MDMA in the place of
incident.

Their
voluntary
statement
is
recorded.

Huge
quantum of contraband is in their conscious possession.

11. 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
CCH­33
Crl.Misc.No.8038/2022
7
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. 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
8
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 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.

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CCH­33
Crl.Misc.No.8038/2022
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.
12.

The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. 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
primafacie 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
10
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 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 petitioners are not guilty of the
offences with which they are charged and further that they
are 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 petitioners are not
guilty of such offence and that they are not likely to commit
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CCH­33
Crl.Misc.No.8038/2022
any offence while on bail alone will entitle them to a bail. In
the present case, the petitioners 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
petitioners or not. At this juncture, we cannot say that the
petitioners are 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 they are 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 petitioners 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 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 they are not likely to commit any
offence while on bail. Here in the present case the petitioners
were apprehended and 3 Kgs., of ganja and 17 grams of MDMA
was seized from the petitioners herein.

The quantity of the
contraband is commercial quantity. At this stage, there are
12
primafacie materials available against the petitioners in regard
to the possession of narcotic drug. Commercial quantity of
contraband is seized. At this stage, no material placed on
record by the defence to show that the accused are no way
connected with the contraband which is seized from the
petitioners herein.

In the result, I proceed to hold that the
petitioners herein have not made out any grounds to entertain
their plea for bail. Accordingly, I answer point No.1 in the
negative.

13. Point No.2:­ In the result, I proceed to pass following:
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 24th DAY OF AUGUST 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.