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 28 th DAY OF September 2022
Crl.Misc.No.9349/2022
Petitioner :
(accused No.1)
Surendra G, S/o.late Gopal, 25
years, No.312/C, 75th Cross road, KS
Layout I Stage, Bangalore 560 078.
(By Sri KSV., Adv.)
V/S.
Respondent :
State by K.S Layout PS
(By Public Prosecutor)
O R DE R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail in Cr.No.171/2022 of K.S
Layout PS., registered for the offences punishable U/Sec.8(1),
22(c), 27(a) and 20(ii) B of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
2
That the petitioner is innocent and law abiding citizen.
He has not committed any offence much less the offence as
alleged.
He has no knowledge of alleged crime and falsely
implanted at the instance of extraneous elements.
The
contraband alleged to have been seized from the present
petitioner is 160 grams of hashish oil and 5 Kgs., of half wet
ganja. The quantum of contraband seized in the case does not
fall under category of commercial volume and the investigation
in the crime would take substantial time and as such he would
be put to untold hardship.
The alleged seized from other
accused cannot be connected together because the said seizure
was from the individual possession of each accused. The
present petitioner cannot be connected to the seizure of
contraband article effected from other accused as he was not
found in the company of other accused. The search and
seizure procedure are not in accordance with law.
statement
recorded
by
the
IO.,
during
the
course
The
of
investigation cannot be looked into as they are in admissible.
He is the permanent resident of the address shown in the
cause title. Doing avocation of Accounts manager in Lenskart
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CCH-33
Crl.Misc.No.9349/2022
company have good family background and there is no chance
of fleeing from the clutches of law.
The major portion of
investigation is concluded. Further custody of petitioner is not
warranted.
He is ready to co-operate with investigating
agency. He is ready and willing to offer sureties and ready to
abide by conditions in the event of grant of bail. Hence, sought
to grant bail.
3. The objection raised by the prosecution is that
investigating agency has in all seized
the
9 Kgs., 100 grams of
ganja, 250 grams of hashish oil, 20 LSD strips weighing 0.19
grams, 15 grams of MDMA, from the possession of the accused
Nos.1, 2 & 6. the petitioner herein is doing the trade of drug.
The offence alleged against the petitioner is punishable with
rigorous imprisonment for a term which shall extend upto 10
years. There is a primafacie case available against the
petitioner.
He is an habitual drug dealer.
In the event of
grant of bail, he would abscond and may hamper the
investigation. Hence, sought to reject the bail plea of petitioner.
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 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:- A report submitted by PI., CCB., who is
the complainant in this case before the K.S Layout PS. The
contents of the report is here under:On
22.05.2022,
at
about
11.00
am.,
when
the
complainant was in the station he has received credible
information that two persons are possessing contraband
illegally
at
Kumaraswamy
house
No.312/C,
Layout,
75th
Bangalore.
cross,
On
1st
receipt
Stage,
of
the
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CCH-33
Crl.Misc.No.9349/2022
information he has informed to his higher officer, obtained
permission and thereafter, he along with his staff and panchas
has been to the spot and found the suspected persons. He has
apprehended them and on enquiry they have revealed their
names i.e., Surendra and Rajesh accused Nos.2 and present
petitioner herein. On conducting raid of the house they seized
9 Kgs., 100 grams of ganja, 250 grams of hashish oil, 20 LSD
strips weighing 0.19 grams, 15 grams of MDMA.
A detail
seizure panchanama was drawn. Thereafter, he has prepared
a detail report and submitted before the SHO, which is the
basis to register the case against the present petitioner and
accused Nos.2 to 5 in Cr.No.171/2022 for the offences
punishable U/s.8(1), 22(c), 27(a) and 20(ii)(B) of NDPS Act.
The present petitioner is accused No.1 in the case.
8. The prosecution has produced the case diary of the
case and the voluntary statement of present petitioner,
accused Nos.2, 5 and 6.
The financial transaction between
the accused No.4 and other accused through on line and his
continuous acquaintance with them is collected by the
6
investigating agency. The said information noted in the case
diary is submitted to this Court in a sealed cover by the
instigation officer.
Further, it is argued that in the case of
present nature where the accused is involved in drug
trafficking, his plea for Bail would not be entertained.
With
this material objection he has sought to reject the Bail plea.
9. On going through the materials available on record,
as per the investigation papers, initially accused Nos.2 and
present petitioner were apprehended in their house with 5
Kgs., of ganja, 250 grams of hashish oil, 20 LSD strips.
Thereafter, accused No.3, 4, 5 and 7 were apprehended. At the
instance of accused No.6, 4 Kgs., 100 grams of ganja and 15
grams of M.D.M.A is recovered.
At the instance of accused
No.5 130 grams of ganja, 30 grams of hashish oil is recovered.
The LSD strips seized in the case is 0.19 grams which is
commercial quantity.
In the case diary the detail report of
seizure and voluntary statement of present petitioner, accused
Nos.2, 5 & 6 is furnished.
7
10.
CCH-33
Crl.Misc.No.9349/2022
On looking to the voluntary statement of present
petitioner before the investigating agency he has made
allegation against accused No.4 that he got acquainted with
him in the year 2019 as he was running a juice shop in
Kumaraswamy Layout. When he has met with accident in the
year 2021 accused No.4 has given hospital expenses. At that
time, accused No.1 has given his account details and credit
card to the accused No.4. accused No.4 has informed him that
he is going to transfer amount which he has acquired out of
sale of drugs to his account. He has also impressed accused
No.1 that drug business is a lucrative one and he used to
purchase drugs from one Fiyaz who is also having name as
Mohith. Petitioner used to purchase drugs from Fiyaz @ Dabar
@ Mohit.
On several occasions he had conversed with this
petitioner through mobile as well as through whatsapp calls.
They were doing drug business together and were sharing the
amount and were sharing the profits accrued out of it. Accused
No.2 was also doing drugs business with the present
petitioner. He has given the details of the amount transferred
to the accounts which has been given by accused No.4 and the
8
said amount is pertaining to the drug business. Accused No.5
has revealed that he is a consumer of drug and used to
purchase it from the present petitioner and accused No.2.
Accused No.6 in his statement has stated that he has given
contraband to accused No.5 on several occasions. He used to
purchase ganja, MDMA from Fiyaz, who is native of Kerala. At
his instance contraband is recovered. Similarly at the instance
of accused Nos.1, 2, 5 & 6 contraband is recovered.
On
looking to the statements of accused Nos.1 and 2 they are
having acquaintance with the accused No.4 and they are doing
drug business with the accused No.4. Commercial quantity of
contraband recovered at the instance of accused Nos.2 and
present
petitioner.
The
documents
collected
by
the
investigating agency in regard to the transfer of money towards
the drug business is evident from the investigation papers
which is available in the case diary. When huge quantum of
contraband is being purchased and sold by the accused Nos.1
and 2 along with accused No.4, when the investigation is in
progress the plea of bail claimed by the petitioner at this stage
could not be entertained.
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Crl.Misc.No.9349/2022
11. The Hon’ble Apex Court in the case of Satpal Singh
Vs., State of Punjab in 2018 SAR (Criminal) 623 was
pleased to hold that when a person is found to be in illegal
possession of contraband of commercial quantity, the Court
would not have granted anticipatory bail to the accused.
Further the Hon’ble High Court could not have passed order
U/s.438 or 439 of Cr.P.C., without reference to Sec.37 of NDPS
Act and without entering a finding on the required level of
satisfaction in case the court was otherwise inclined to grant
the bail.
12. On going through the material placed on record by
the investigating agency, at this stage, there are serious
allegations against the present petitioner that he has involved
in drug trafficking and financing towards purchase of drugs.
Further, contraband seized in this case is 5 Kgs., of ganja, 250
grams of hashish oil, 20 LSD strips weighing 0.19 grams and
15 grams of MDMA, 4 Kgs., 100 grams of ganja.
As per
specification of small and commercial quantity of narcotic drug
10
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
10 grams is a commercial quantity. In the present case 15
grams of MDMA narcotic substance is seized which is a
commercial quantity. Likewise, at Sl.No.133 the narcotic drug
– LSD weighing 0.1 gram is commercial quantity.
In the
present case 0.19 grams of LSD is seized which is also
commercial quantity.
13.
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
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CCH-33
Crl.Misc.No.9349/2022
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 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
12
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
non
application 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.”
14. 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;
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CCH-33
Crl.Misc.No.9349/2022
(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 co
accused.
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.
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 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
14
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 the 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 :
“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.”
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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
16
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 petitioner
is not guilty and that he is not likely to commit any offence
while on bail. In this case, in all 9 Kgs., 100 grams of ganja,
250 grams of hashish oil, 20 LSD strips weighing 0.19 grams,
15 grams of MDMA. At this stage, there is primafacie material
available against the petitioner in regard to the sale of narcotic
drug.
He is doing drug trafficking along with accused No.2.
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.
15. 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.
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CCH-33
Crl.Misc.No.9349/2022
[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 28th day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*