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 11th DAY OF JANUARY 2023
Crl. Misc.No.12323/2022
Petitioners :
(accused Nos.1 & 3)
1. Syed Mohammed Hilaal,
S/o.Syed Faroq Haidari, 24
years, No.35/2, 6th A Cross, Opp.
Subhash Memorial School,
Boopasandra, Bangalore.
2. Adesh Jaiswal, S/o.Rakesh
Biswal, 21 years, No.17/1,
Near Deepa Nursing home,
Marathahalli, Bengaluru.
(By Sri.NP., Adv.
V/S.
Respondent :
State by Marathahalli PS.
(By learned Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.290/2022 of
2
Ashoknagar
Police
Station
registered
for
the
offences
punishable U/Section 8(c), 20(ii) (B) and 22(c) of NDPS Act.
2. The grounds urged by the petitioners for grant of bail
are as under:
That the petitioners are innocent and law abiding
citizens. They have not committed any offence much less the
offence as alleged.
They have 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 quantum of ganja seized
from the present petitioners are intermediary in nature. The
description of the place is not there in the report. The
petitioners are permanent residents of the address shown in
the cause title. Petitioner No.1 is an Engineering student
studying BE Mechanical Engineering in Residency college,
Bangalore and petitioner No.2 is doing POP Interior Decorator.
The petitioners are ready and willing to abide by any
conditions imposed by this court in the event of grant of bail.
CCH33
Crl.Misc.No.12323/2022
3
They are ready to offer surety for their 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 2 Kgs., 300 grams of ganja,
11 Grams of MDMA which is commercial quantity.
The
offences alleged against the petitioners are 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 petitioners. They are habitual drug dealers. There is
primafacie case made out against petitioners. If 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:
4
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 Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The PSI of Marathahalli PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:
On 7.12.2022 at 10.30 am., when the complainant PSI
was discharging duties in the station he has received credible
information that at Manikanta Bakery, 1st cross, Marathahalli
some persons are selling prohibited ganja and MDMA crystal
to the public secretly. On receipt of information he has made a
note in the office register, obtained permission from the higher
officer. He along with staff and panchas had been to the place
where the said suspected persons were carrying the trade of
contraband.
When he has been to the spot, three persons
CCH33
Crl.Misc.No.12323/2022
5
were found therein. On enquiry they have revealed their names
and address as Syed Mohammed Hilal, Wasim Akram and
Adesh Jaiswal. On further enquiry they have stated that they
are doing the trade of contraband. They have purchased
contraband from their friends Sonu, Kadil, Isamil, Tarbesh
who are residing at HAL, Vibuthipura and Rameshnagar for
lesser price. During personal search accused No.1 is found in
possession of 1 Kg., 200 grams, accused No.2 is found in
possession of 11 grams of MDMA and accused No.3 is found in
possession of 1 Kg., 100 grams of ganja.
The contraband
which was found in the possession of accused Nos.1 to 3 were
seized under a detail mahazar. Accused were arrested. The
complainant PI., has prepared a detail report and submitted
before SHO., Marathahalli PS., which is the basis to register
the case against the accused Nos.1 to 3 in Cr.No.290/2022 of
Marathahalli
PS
registered
for
the
offence
punishable
U/Sec.8(c), 22(c), 20(ii)(b) of NDPS Act. Thereafter the accused
were produced before jurisdictional Magistrate and was
remanded to JC. The present petitioners are accused Nos.1 &
3 in the case.
6
8. It is vehemently argued by the learned counsel for the
petitioners that IO., has not followed the mandatory provisions
of search and seizure. The quantum of ganja seized from the
present petitioners is intermediary in nature. The description
of the place is not there in the report. The complainant has
not noticed any person who were buying ganja from petitioners
by paying money.
family.
major
They are the sole bread earners of their
They have been falsely implanted in the case. The
portion
of
investigation
is
concluded.
Custodial
interrogation is not warranted. They are entitled for bail.
9.
It is argued by the prosecution that the petitioners
have committed heinous offence and it is punishable with RI
upto 20 years.
The petitioners may involve in similar offence,
if they are released on bail. There are primafacie material
available against them.
10.
On
careful
analysis
of
rival
contentions,
the
investigating agency seized 2 Kgs., 300 grams of ganja and 11
grams of MDMA under the seizure panchanama. As per
CCH33
Crl.Misc.No.12323/2022
7
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 at Sl.No.134 the narcotic drug – MDMA
weighing 10 grams is a commercial quantity. In the present
case 11 grams of MDMA seized is commercial quantity. The
contention of the petitioners that the they are in JC, the major
portion of investigation is concluded and his further detention
is not warranted is unsustainable, as the material available on
record indicates involvement of present petitioners in the crime
as they are found in possession of contraband.
The seized
contraband has been shown in the detail mahazar. As per the
investigation papers, the investigation is in progress.
The
petitioners herein was found in the company of accused No.2.
At the instance of accused Nos.1 & 3 2 Kgs., 300 grams of
ganja is seized, at the instance of accused No.1 11 grams of
MDMA was seized.
The seizure was affected when accused
Nos.1 to 3 were together. The joint possession of contraband
has to be taken into consideration.
When the seizure is
affected accused Nos,.1 to 3 were together and the total seizure
8
of contraband from them includes seizure of MDMA and ganja.
MDMA seized in the case is commercial quantity. Therefore,
the contention of learned counsel for petitioners to consider
independent seizure would not be entertained.
11.
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 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 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.
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CCH33
Crl.Misc.No.12323/2022
Further in the judgment of 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.”
In 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,
10
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 Act and in order to curb the menace of drug
trafficking 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
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CCH33
Crl.Misc.No.12323/2022
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.
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
12
(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.
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
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CCH33
Crl.Misc.No.12323/2022
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
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. In this case, 11 grams of MDMA seized
from the conscious possession of the petitioners herein.
At
this stage, there is prima facie material available against the
petitioners in regard to possessing the contraband at the time
of their apprehension.
They were found in the company of
accused No.2. The total recovery of contraband ion the case is
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MDMA 11 grams and 2 Kgs., 300 grams of ganja.
MDMA
seized in the case is commercial quantity. The learned counsel
for petitioners has failed to place any material before this court
that they were not doing the trade of contraband at the time of
their apprehension and search. 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.
12. 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 11th day of January 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.