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 23rd JANUARY, 2023
Crl.Misc.No.482/2023
Petitioner :
(accused)
Tapan Kumar Bishoi,
S/o.Dusashan Bishoi,
Aged about 21 years,
Residing at Phiringia Village and
Taluq, Kandhamal Dist,
Odisha State.
Presently at:
No.103, 8th Cross, AGB Layout,
Near Saptagiri College, Chikka
Banawara Main Road,
Bangalore­560090.
(By Sri P.D.Pradeep Kumar Adv.)
V/S.

Respondent :
State by Banaswadi PS
(By Public Prosecutor)
2
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.6/2023 of
Banaswadi
PS.,
registered
for
the
offence
punishable
U/Sec.20(b) of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is very 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
mandatory provisions U/s.50 of NDPS Act has not been
complied.

There are no eye witnesses who speak about the
sale of alleged contraband. Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. 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
CCH­33
Crl.Misc.No.482/2023
3
before this court. He has no bad antecedents. He is the sole
bread earner of his family. Hence, sought to grant bail.

3. The objection raised by the prosecution is that the
investigating agency has in all seized 8 Kgs of ganja from the
possession of the accused.

The accused is 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 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. 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 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 Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:­ A report submitted by PSI, ., who is the
complainant in this case before the Banaswadi PS.

The
contents of the report is as here under:­
On 07.01.2023 at about 8.00 AM., when the complainant
PSI was on patrolling duty along with his staff, he has received
credible information through the informer that a person was
trying to sell Ganja on public road at Banaswadi Railway
Station, near the auto stand, Janakirama Layout.

The
complainant along with his staff went to the spot found a
person moving on footpath holding a plastic cover.

He was
trying to sell some article to the public. On confirming about
CCH­33
Crl.Misc.No.482/2023
5
the information that, the said person is carrying Ganja, the
complainant PSI has registered a Suo­moto case in Cr. 6/2022
for the offence punishable u/Sec. 20(B) of NDPS Act 1985.
Thereafter, he has been to the spot, the suspect was
surrounded, on enquiry he has revealed his name and
address. When the contents of the bag was questioned, he has
stated that it is containing ganja.

The bag containing ganja is
seized. The ganja on weighing the same found to be 8 Kgs.

A
detail report was prepared and submitted before SHO.
Thereafter
accused
was
arrested
and
produced
before
jurisdictional Court and remanded to judicial custody.

8. 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 search and seizure 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.

6
9. It is argued by the prosecution that the petitioner has
committed heinous offence 8 Kgs of ganja is seized from the
petitioner and other accused.

The offence punishable with
imprisonment upto 10 years and with fine. There are prima­
facie material available against him.
10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
7.1.2023 complainant has conducted raid and apprehended
accused.

On looking to the seizure panchanama the drugs
seized from accused is weighing 8 Kgs of ganja. 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.
case the quantum of ganja seized is 8 Kgs of ganja
In this
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:
CCH­33
Crl.Misc.No.482/2023
7
Ss.37 and 20 – Bail – grant of – non commercial quantity –
quantity involved being only 18 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.

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 8 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 from
8
accused.

The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.

His
Further
Voluntary
statement is already recorded. As per the information provided
by the petitioner he is permanently residing in the address
shown in the cause title. The apprehension of the prosecution
that he 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 petitioner U/Sec.439 of
Cr.P.C is hereby allowed.
The petitioner is enlarged on bail on executing
personal bond for a sum of Rs.1,00,000/­ with two
sureties for the like sum with following conditions.

1.

The petitioner 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
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CCH­33
Crl.Misc.No.482/2023
charge sheet or further orders whichever is
earlier.
2.

He shall not leave the jurisdiction of this
court without prior permission.

3.

He shall not tamper the witness or abscond.

4.

He
shall
co­operate
investigation.

5.

He shall not commit similar offence or
any offence while on bail.

6.

He shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties.

7.

He shall appear before the court on all
hearing dates.

8.

Breach of any of the conditions by the
petitioner would entail cancellation of bail.

with
I.O
for
[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 23rd January, 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.