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 1 st DAY OF AUGUST 2022
Crl.Misc.No.7264/2022
Petitioners :
A.1 Sumithra
W/o. Murugan
Aged 20 years,
R/at No.9/2, 2nd Cross,
6th Block, Gopalspura,
Rajajinagara,
Bengaluru.
A.2 Seetha
W/o. Kutti,
Aged about 38 years,
R/at. No.3, C/o. Shridhar,
1st Main, Sunrise Circle,
Srirampura,
Bengaluru.
(By Sri P.R.Bhat, Adv.)
V/S.
Respondent :
State by Magadi Road PS
(By Public Prosecutor)
O R DE R
2
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge them on bail, in Cr.No.140/2022 of
Magadi Road PS., registered for the offences punishable
U/Sec.8(c), 20(ii), (B), 21(B) of NDPS Act.
2. The grounds urged by the petitioners for grant of bail
are as under:
That the petitioners are absolutely innocent of the alleged
offences and have got valid and tenable defense on their
behalf.
The petitioners have been falsely implicated in the
above case and the entire version of the complaint is a
concocted and created story and the same claims to be tried.
The petitioners are totally strangers to the alleged crime and
neither directly nor indirectly they are involved in the
commission of the offence.
The mandatory provisions on
Sec.42, 50, 52, 55 and 57 of NDPS Act have not been
complied.
purpose
That the petitioners are no more required for the
of
any
enquiry
or custodial
interrogation
and
detention in judicial custody without concrete evidence or
proof will be against the principles of natural justice and
against the fundamental rights of the above named petitioners.
CCH-33
Crl.Misc.No.7264/2022
3
The petitioners are law abiding citizens without any bad
antecedents, they are permanent residents of the above
mentioned address, the petitioners hail from a respectable
family and living a decent life with their family. 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 objection raised by the prosecution is that the
investigating agency has in all seized 940 grams of Hashish
Oil and 10 kgs., of ganja and other articles from the possession
of the accused. The accused are found to be in possession of
narcotic substance. A detailed mahazar is drawn in the spot.
Personal search is conducted. The offence alleged against the
petitioner is punishable with rigorous imprisonment for a term
which shall extend upto 20 years of imprisonment and 2 lakhs
fine. There is a primafacie case available against the petitioner.
He is an habitual drug dealer.
In the event of grant of bail,
they would abscond and may hamper the investigation. Hence,
sought to reject the bail plea of petitioners.
4
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 Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- A report submitted by PI (CCB)
Bengaluru (W & N), who is the complainant in this case before
the Magadi Road PS.
The contents of the report is as here
under:On 16.07.2022 at 1.15 PM., the complainant PI has put
the criminal law into motion. On 15.7.2022 at 9.00 PM., when
the complainant was discharging his duties in his office, he
has received credible information that there is illicit storage of
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CCH-33
Crl.Misc.No.7264/2022
contraband in the house of accused No.1, situated at Door
No.9/2,
2nd
Cross,
6th
Block,
Gopalpura,
Rajajinagar,
Bengaluru. On obtaining permission from ACP (CCB), he has
conducted raid in the house of accused No.1. In the house of
accused No.1, accused Nos.2 and 3 were also present along
with accused No.1.
On search of the house, 940 g4rams of
hashish oil 10 kgs of ganja were found. The said contraband
is seized under the mahazar. The A.1 to 3 who were in the
house were arrested, a detailed mahazar is drawn on the spot.
The complainant PI along with the accused and the seized
articles filed a complaint before the Magadi Road P.S., which is
the basis to register a case against accused Nos.1 to 4 in Crime
No.140/2022 for the offences punishable u/Sec.8(c), 20(ii)(b)
21(b) of NDPS Act. The present petitioners are accused Nos.1
and 2 in the case.
8. It is argued by the learned counsel for petitioner that
they are planted in the case by the complainant police they are
unaware of seized drug. The seized article is not commercial
quantity. The mandatory provisions of Sec.41, 42, 50, 52 and
6
47 of the Act are not complied. They are permanent resident of
the address given in the cause title. In the event of grant of
bail they are ready to abide by the conditions which are being
imposed by this court.
9. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioners is punishable
with imprisonment upto 10 years and fine.
In the event of
grant of bail they are going to abscond and may hamper
investigation.
10.
On careful analysis of rival contentions and the
prosecution papers available on record the investigating
agency seized 940 grams of Hashish Oil, 10 kgs of ganja under
the seizure panchanama. The petitioner are in judicial custody
since the date of their arrest i.e., from 15.07.2022. On looking
to the seizure panchanama the drugs seized is weighing 940
grams of Hashish Oil and 10 kgs of ganja. As per specification
of small and commercial quantity of narcotic drug or
psychotropic
substance
issued
by
Ministry
of
Finance
CCH-33
Crl.Misc.No.7264/2022
7
Department
of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001 at Sl.No.23 the narcotic drughashish 100 grams
is small quantity and 1 Kg., is commercial quantity. 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.55 the narcotic drugganja 1000 grams is
small quantity and 20 Kgs., is commercial quantity. In this
case the quantum of Hashish Oil seized is 940 grams and
ganja seized is 10 kgs of which is an intermediate quantity. As
per the decision of Hon’ble Apex Court reported in 2018 11
SCC 488 Birbal Prasad Vs., State of Bihar wherein it is held
that:
Ss.37 and 20 – Bail – grant of – non commercial quantity –
quantity involved being only 14 Kgs., of ganja, which is a
non commercial quantity appellant accused not involved in
any other case – in above circumstances, held, appellant
should be released on bail, pending trial – hence, directions
issued to release appellant on bail, on certain conditions.
8
The said case law aptly applies to the case on hand in holding
that the contraband seized in the case on hand is intermediate
quantity and it is not commercial quantity.
In the said
circumstances, as per the observations of Hon’ble Apex Court
the bail plea of accused to be considered.
11.
Here in this case the drugs seized by the
investigating agency to the tune of 940 grams of Hashish Oil
and 10 kgs. of ganja, which is an intermediate quantity. When
the quantity is less than commercial quantity, rigors of Sec.37
of the NDPS Act will not attract, and factors become similar to
bail petitions under regular statues normal, unless the
prosecution points towards exceptional circumstances.
12.
The major portion of investigation in the case is
concluded as the incriminatory article is already seized. The
offence alleged against the petitioners is not punishable with
death or imprisonment for life. Further custodial interrogation
is not warranted. Voluntary statement of accused are already
recorded. As per the information provided by the petitioners
they are permanently residing in the address shown in the
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Crl.Misc.No.7264/2022
9
cause title.
The apprehension of the prosecution that they
may abscond and may protract the trial could be compensated
by imposing stringent conditions. In the result, I answer the
point for consideration in the affirmative.
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 allowed.
The petitioners are enlarged on bail on
executing
personal
bond
for
a
sum
of
Rs.1,00,000/- each with two sureties for the like
sum with following conditions.
1. The petitioners shall give attendance before the
concerned I.O., once in a month i.e., preferably
on first Monday of every month in between
10.00 am., to 2.00 pm., till filing of charge
sheet or further orders whichever is earlier.
2. They shall not leave the jurisdiction of this
court without prior permission.
3. They shall not tamper the witness or abscond.
4. They shall co-operate with I.O for investigation.
5. They shall not commit similar offence or any
offence while on bail.
10
6. They shall furnish their photo ID proof and
photo ID proof of his sureties.
7. They shall appear before the court on all dates
of hearing.
8. Breach of any of the conditions by the
petitioners would entail cancellation of bail.
[Dictated to the Judgment Writer, directly on the computer, typed and
computerised by her, corrected, signed and then pronounced by me in
Open Court on this the 1st day of August, 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
PST/*