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 6TH DAY OF DECEMBER 2022
Crl. Misc.No.11329/2022
Petitioner :
(accused No.1)
Subin Binoy, S/o.Bonoy Appuktan,
a/a 22 years, R/at Mattathil House,
Thiruvarpu, Kanjiram PO, Kililrur
North, Kottayam, Kerala.
(By Sri K.V.Laveen Poovaiah, Adv.)
V/S.
Respondent :
State by Soladevanahalli Police
Station
(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.92/2022 of
Soladevanahalli PS., registered for the offences punishable
U/Sec.20(b), 20(b) (i), 22(c) of N.D.P.S. Act.
2
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 is residing Bangalore and
studying
B.Sc.,
in
operation
Chikkabanavara, Bangalore.
theater
in
RR
Institute,
If the petitioner is in judicial
custody anymore, his bright future will be affected and his
entire career will be in dark. There is no connection or active
part played by this petitioner. There is no recovery from the
present petitioner. As per the prosecution they have seized the
drugs from the house of petitioner.
Petitioner is permanent
resident in the address as 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
CCH33
Crl.Misc.11329/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filled
boxes in all 1188 grams from the present petitioner and other
accused which is a commercial quantity. There are sufficient
material available against the petitioner, and the said offences
are punishable with rigorous imprisonment for a term which
shall not be less than 10 years which may extend to 20 years
and shall also be liable to fine. The investigation is concluded
and charge sheet is filed. In the event of his release he may
tamper with the prosecution witnesses. Incriminatory articles
were seized from his custody.
similar offences.
He may involve himself in
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.
4
4. Heard learned counsel for the petitioner and the
prosecution.
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 PI, Soladevanahalli PS., Bangalore
has put the criminal law into motion. The gist of the allegation
reads as here under:
On 11.5.2022 at about 11.00 am., when the complainant
was in the station he has received credible information that at
near Chikkabanavara Railway Parallel road some persons are
selling weed oil and ganja to the public. He has informed the
5
CCH33
Crl.Misc.11329/2022
matter to ACP and obtained permission to conduct raid. He
has called the panchas.
He has been to the spot and
apprehended 2 persons. On enquiry they revealed their names
and addresses. They are one Subin Binoy and Mohammed
Irfan that is accused No.1/petitioner herein and accused No.3.
Asst. Commissioner of Police was called to the spot to conduct
personal search. During personal search of A1 and A3, 10
grams of ganja in 10 packets and 8 to 10 grams of weed oil in
12 plastic pockets were found, after seizing the contraband
and on enquiring them they have stated that they are residing
at Flat No.1016, 10 floor of Mahaveer Desire Apartment they
are staying along with one Sojin, Kiran Kumar, Anandu Murali
and Mohammed Shiyas that is accused Nos.4 to 7. The
accused No.1 and 3 were selling ganja and weed oil along with
other accused at the instance of accused 1 and 3 search was
conducted in flat No.1016 of Mahaveer Desire Apartment. In
the said apartment accused no.4 to 7 were found. During the
house search 1580 grams of ganja, 1 Kg., 960 grams of weed
oil, 1188 grams of weed oil, 1 weighing machine, vessels were
found.
The said articles were seized under Panchanama.
6
Accused Nos.1, 3 to 7 were arrested. Thereafter, basing on the
report of raiding officer, a case in crime No.92/2022 is
registered against against accused No.1 to 7 for the offences
punishable U/sec. 20(b), 20(b) (i), 22(c) of N.D.P.S. Act. The
present petitioner is accused No.3.
8. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 10 years.
In the event of grant of bail he is going to
abscond and may hamper investigation.
9. 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 Sec.41, 42, 50, 52 and
47 of the Act are not complied. 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.
The
learned
counsel
for
the
petitioner
vehemently argued that there is non compliance of Sec.42 of
CCH33
Crl.Misc.11329/2022
7
NDPS Act. The search and seizure is not in accordance with
law.
10. Herein this court is considering the bail plea of the
petitioner on the primafacie materials placed on record by the
prosecution. The contention of the accused that he was falsely
implanted and and he was not in conscious possession and
further the requirements of statute particularly Sec.42 has not
been complied cannot be appreciated at this stage.
In the
instant case the petitioner along with other accused was
apprehended with huge quantum of contraband in an
apartment when all the accused were together, that he is in no
way connected to the seizure of contraband could not be
entertained.
11. On looking to the prosecution papers the quantum
of narcotic substance seized is 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1,188 grams.
As per specification of small and
commercial
narcotic
quantity
of
drug
or
psychotropic
substance issued by Ministry of Finance Department of
8
Revenue Notification S.O.1055(E) dated 19.10.2001 at Sl.No.55
the narcotic drug – Ganja weighing 1000 grams is small
quantity and 20 Kgs., is a commercial quantity. Likewise, at
Sl.No.23 the narcotic drug – weed oil/ganja oil weighing 1 Kg.,
is a commercial quantity.
In the present case 1 Kg., 580
grams of Ganja, 1 Kg., 960 grams of Weed oil/ganja oil and
154 weed oil filed boxes in all 1,188 grams which is
commercial quantity. Furthermore, the petitioner herein was
apprehended along with accused No.3 with the contraband
ganja in the place of incident.
Their voluntary statement is
recorded. Huge quantum of contraband is in their conscious
possession. The contention raised in the present petition is no
document is collected by the IO in regard to the rental
agreement of the flat could not be entertained that for the
simple reason that the said aspect has to be considered at the
time of full fledged trial. That apart the petitioner herein along
with accused No.3 has shown the Mahaveer Desire Apartment
to the investigating agency from where the other accused along
with huge quantum of contraband is seized.
Yet another
contention raised by the petitioner is no document collected by
9
CCH33
Crl.Misc.11329/2022
the IO., in regard to the financial transaction in regard to drug
peddling, the said aspect has to be probed at the time of trial.
12.
It is well settled principal of law that while
considering the bail plea of the accused this court has to
appreciate the nature and gravity of allegations made against
the accused, severity of punishment, danger of absconding if
released on bail, criminal antecedents and the facts and
circumstances in each case has to be appreciated carefully
while entertaining the bail plea of each one of the accused.
The Hon’ble Apex Court in the recent judgment in the case of
State of Kerala Vs., Mahesh in Crl. Appeal No.343/2021,
(SLP.Cr.No.1530/2021) dated 19.3.2021 has cautioned the
courts against mechanically granted bail in heinous offenses,
saying the seriousness of the charge is a basic consideration
before setting an accused free on trial.
The Hon’ble Apex
Court while setting aside the order of Kerala High court bailing
out a man accused of stabbing to death a 30 year old dentist
in front of her father in September 2020 and in the said case
accused had gone absconding for several days before his
10
arrest.
Though the trial court denied him bail, the Hon’ble
High Court set him at liberty.
The Hon’ble Apex Court
observed that the nature of offence is one of the basic
considerations for the grant of bail more heinous is the crime,
the greater is the chance of rejection of the bail, though,
however, depending on the factual matrix of the matter.
While granting the bail court has to keep in mind not only the
nature of accusation, but the severity of the punishment.
Other criteria include reasonable apprehensions of influence
witnesses or tampering of evidence.
It is also observed that
grant of bail is a judges discretion however, calls for exercise of
such a discretion in a judicious manner and not as a matter of
course.
Order of bail bereft of any cogent reason cannot be
sustained.
13. Further in another judgment of Hon’ble High Court
of Karnataka in a case Crl.Petition No.5358/2015 State of
Karnataka Vs., D.B.Sandeepa dt.3.3.2016 has observed
that mere filing of charge sheet against persons accused of
heinous offences cannot be the reason to release them on bail.
11
CCH33
Crl.Misc.11329/2022
The trial courts will have to keep in mind the guidelines issued
by the Hon’ble Apex Court from time to time for examining the
nature in gravity of the offences, severity of punishment in the
event of conviction, danger of absconding if released on bail,
and facts and circumstances in each case before granting bail
to the accused. The Hon’ble High Court passed the order while
canceling the bail granted by the learned Sessions Judge.
14.
In the recent judgment of Hon’ble High Court of
Karnataka in the case of Vinay Rajashekarappa Kulkarni
Vs., CBI in Crl.Petition No.2601/2021 dated 24.5.2021
while rejecting the bail plea of the accused for the offence
U./s.302 R/w.Sec.120 (B) of IPC., the Hon’ble High Court
made an observation that even if there is no primafacie
material available on record against the accused, the gravity of
offence and severity of the punishment, character, behaviour
and standing of the accused, reasonable apprehension of the
witnesses being tampered with has to be considering by
making a detailed observations on the facts of the said case
has rejected the bail plea of petitioner.
12
15.
Before granting bail the court should evaluate if
there is reasonable apprehension of accused tampering the
evidence or threatening the complainant.
The Hon’ble Apex
Court reemphasized on the parameters for granting bail to the
accused, while quashing the bail granted to an accused
charged with carrying out supari killing of a person in the case
Ashiyana PS., of UP, Lucknow district.
16. The accused involved in heinous offence should not
be granted bail arbitrarily. As various factors like the
propensity to tamper with evidence and the plausibility of
escape should be considered before the relief is given.
The
Hon’ble Apex Court chided the order of Hon’ble Apex Court of
Calcutta in granting the bail to accused who is an accused in a
murder case.
17.
The trial courts will have to keep in mind the
guidelines issued by the Hon’ble Apex Court from time to time
for examining the nature in gravity of the offences, severity of
punishment in the event of conviction, danger of absconding if
13
CCH33
Crl.Misc.11329/2022
released on bail, and facts and circumstances in each case
before granting bail to the accused.
18.
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.
Given the seriousness of offences punishable under the NDPS
14
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 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.
15
CCH33
Crl.Misc.11329/2022
19. 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 circumstances to
be considered and has to be evaluated by the court to consider
the bail plea of the accused.
16
20.
As per the enunciation of law in the aforesaid
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 are not guilty and that he is not likely to commit
any offence while on bail.
Herein the present case the
petitioner was apprehended and 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1188 grams was seized from the apartment of
petitioner
and
possession.
other
accused
and
also
from
physical
The present petitioner and accused No.3 has
shown Mahaveer desire Apartment to the investigating agency
and there huge quantum of contraband seized along with other
incriminatory
material.
The
other
accused
were
also
apprehended at the instance of accused Nos.1 and 3. The
quantity of the contraband is commercial quantity.
At this
stage, there are primafacie materials available against the
petitioner in regard to the possession of narcotic drug which is
commercial quantity.
The final report filed by the police
indicates that the petitioner is in conscious possession of
CCH33
Crl.Misc.11329/2022
17
commercial quantity of contraband. 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.
14. 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 6th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*