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 13th DAY OF DECEMBER 2022
Crl. Misc.No.10932/2022
Tajudeen Poochkkad, No.3,
Venkateshwara Nialaya, 1st Floor,
Beside St.Pal School, 4th Cross,
Jogappa Layout, Veeranna Palya,
Benglauru .
(By Smt.Nazeera.T.K Adv.)
Petitioner :
(accused No.1)
V/S.
State by Amruthahalli Police
Respondent :
(By Public Prosecutor)
ORDER
The petitioner has filed this petition U/Sec.439 of
Cr.P.C., to enlarge him on bail, in Crime No.77/2022 of
Amruthahalli
Police
Station
registered
for
the
punishable U/Section 8(c), 22(c), 27(A) of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:
offences
2
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 procedure contemplated under N.D.P.S.
Act not followed while recovery. Petitioner is permanent
resident of the address 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. The prosecution while opposing the bail petition
contended that the I.O has seized 25 grams of MDMA Crystal
seized is a commercial quantity. 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 pending. If the
petitioner is granted bail he may tamper with the prosecution
witnesses.
He
may
involve
himself
in
similar
offences.
3
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Crl.Misc.10932/2022
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. 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:
4
REASONS
7. POINT NO.1: The PI , Anti Narcotics Wing, Central
Crime Branch, Bengaluru who is the complainant in this case
before the Amruthahalli PS. The contents of the report is here
under:
On 03.03.2022 at 10.00 A.M when the complainant PI
was discharging duties in the office he has received credible
information that at house No.03, Venkateshwara Nilaya, 1st
Floor, beside Sri Pai School, 4 th Cross, Jogappa Layout,
Veerannanapalya, Benglauru one person is selling MDMA
crystal to the public. The complainant on receipt of the
information informed the matter to ACP, CCB, obtained
permission to conduct raid.
Thereafter, he along with
panchas, his team and investigation tools had been to the
house of suspect. The suspect was found in the house. On
enquiry he has revealed his name and address.
During the
search of the house and personal search, 25 grams of MDMA
was seized from him. A detail panchanama was prepared in
the spot.
jurisdictional
Accused was arrested and produced before
Magistrate
and
was
remanded
to
judicial
CCH33
Crl.Misc.10932/2022
5
custody. He has prepared a report and submitted before
Amruthahalli PS., which is the basis to register a case in
Cr.No.77/2022
against
the
accused
for
the
offences
punishable U/Section 8(c), 22(c), 27(A) of N.D.P.S. Act. Now,
the investigation in the case is concluded and charge sheet is
filed.
8. It is vehemently argued by the learned counsel for the
petitioner that the quantum of contraband seized from the
present Petitioner
is not commercial quantity, hence, he is
entitled for bail. Search and seizure are vitiated by inherent
procedural impropriety. The mandatory provisions of law have
not been followed thereby causing serious doubt on the
investigation, search and seizure procedure.
He is no way
connected to the drugs which were seized in the case. The
major
portion
of
investigation
is
concluded.
Custodial
interrogation is not warranted. He is entitled for bail.
9. It is argued by the prosecution that the petitioner has
committed heinous offence and it is punishable with RI upto
20 years. The petitioner may involve in similar offence, if he is
6
released on bail.
There are primafacie material available
against him.
10.
On careful analysis of rival contentions, the
investigating agency seized 25 grams of MDMA Crystal under
the seizure panchanama. 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 at
Sl.No.134 the narcotic drug – MDMA weighing 10 grams is a
commercial quantity. In the present case 25 grams of MDMA
Crystal seized is commercial quantity.
11. It is argued by the learned counsel for petitioner that
the petitioner has no knowledge of the contraband.
He has
been roped in a false case. The petitioner is in custody since
the date of his arrest and further detention is not warranted.
No CDR details collected.
accused Nos.1 and 2.
There is no connection between
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Crl.Misc.10932/2022
7
12.
On careful scrutiny of the prosecution papers the
IO., has conducted raid in the house of complainant.
The
petitioner was found in the house and the recovery is made
from him. The contention of petitioner that he has been falsely
implanted in the case is without any basis. That apart he has
been prosecuted in several cases of Bekal PS., and Hosadurga.
The details of the case is furnished in the report of IO. Further
contention
that CDR details not collected is a matter to be
agitated at the time of full fledged trial.
At this stage, this
court is considering the bail plea of the petitioner basing on
the prima facie material available on record.
Therefore, the
contentions advanced on the side of petitioner could not be
entertained
at
this
stage.
Moreover,
the
quantity
contraband seized in the case is commercial quantity.
of
FSL
report substantiate the case of the prosecution.
13.
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. In the judgment of Hon’ble High
Court of Karnataka in Crl.Petition No.5358/2015 State of
Karnataka Vs., D.B.Sandeepa dt.3.3.2016 has observed that
8
mere filing of charge sheet against persons accused of heinous
offences cannot be the reason to release them on bail.
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.
Here in this case there is seizure of commercial quantity
of contraband from the petitioner. Mere filing of charge sheet
in a case of heinous offence is not a ground to enlarge him on
bail.
In the recent judgment of Hon’ble Apex Court in the case
of State of Kerala Vs., Rajesh in (2020) 15 SCC 15 2 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
9
CCH33
Crl.Misc.10932/2022
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.
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.”
10
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,
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
11
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Crl.Misc.10932/2022
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.
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.
12
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
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.”
13
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Crl.Misc.10932/2022
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, 25 grams of MDMA Crystal seized
from the conscious possession of the petitioner herein. At this
stage, there is primafacie material available against the
petitioner in regard to possessing contraband which is of
commercial quantity.
The learned counsel for petitioner has
failed to place any material before this court that he is not in
possession of the contraband at the time of his apprehension
and search.
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:
14
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 13th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*