Crl.Misc. No.3203/2024
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KABC010090252024
In the Court of the XXXIV Additional City Civil and Sessions Judge and
Special Judge, (NDPS), Bengaluru
Dated this the 6 th day of April, 2024
Present :Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge and
Special Judge, (NDPS),
Bengaluru.
Crl.Misc. No.3203/2024
Petitioner/
Accused
No.1:
UDAY. R.,
S/o Ramesh.C.,
Aged about 20 years,
R/at No.20/B, No.23,
“B” Cross, 1st Main,
Mysore Road,
Byatarayanapura,
Bangalore.
(By Sri. Maheswara S. G. Advocate)
Vs.

Respondent:
The State of Karnataka,
By Inspector of Excise,
BUD-3, SUBDIV-06
Jnanabharathi Range,
Bengaluru City.
(By Public Prosecutor)
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ORDER
1)
This Criminal Miscellaneous Petition under Section 438 of
Code of Criminal Procedure, 1973 (‘Cr.P.C.’ for short) is filed by
petitioner / Accused No.1 to release him on bail in the event of his arrest
in Crime No.25/2023-24/38IE/380308 registered by Respondent –
Inspector of Excise, Office of Excise Deputy Commissioner, Bengaluru
Urban District-3, DC Squad, Bengaluru, against accused No.1 for the
offences punishable under Sections 20(b) (ii) (A) & 8(c) of Narcotic Drugs
and Psychotropic Substances Act,1985 (‘NDPS Act’ for short).
2)
Learned Public Prosecutor has filed objection to this criminal
miscellaneous petition.
3)
Heard the Counsel for petitioner and learned Public
Prosecutor.
4)
On the basis of contents of the petition, contentions taken in
the objection filed to this application and on the submission of both the
Counsel for petitioner/Accused No.1 and learned Public Prosecutor, the
following points arise for my consideration:
Point No.1: Whether petitioner/ Accused No.1 shows reason to
issue an interim order/ direction for grant of anticipatory bail ?
Point No.2: What Order?
5)
My answer to the above points are as under:
Point No.1: In the Affirmative
Point No.2: As per the final order for the following:
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REASONS
6) Point No.1:
Perused
the
certified
copy
of
documents
produced by the petitioner along with this criminal miscellaneous petition.
These documents reveal that on 13.9.2023 at 7:30 p.m. when Sri. M.K.
Mallikarjuna Swamy, Excise Inspector (EI), DC Squad, Bengaluru Urban
District-3, Bengaluru was on duty he received a credible information that
before Hotel Roti park, Jnanabarathi Main Road, Chandra Layout,
Bengaluru City ganja is selling to public. Thereafter, EI called for panchas
and requested them to assist through requisition and reached near the
place along with panchas while watching EI and others saw a person
coming from the side of Nagarabavi circle and they encircled him. By
seeing EI and others said person tried to ran away by throwing black
colour plastic cover, which was in his hand. Thereafter, the staff along
with EI chased and caught hold said person and brought him near the
place where he threw the plastic cover. The EI prepared reasons for
search at the place and obtained signature of panchas. Thereafter, EI
opened plastic cover and found leaves, flower, seeds and seeds mixed
dry leaves in the cover and by smell found the same as ganja. On enquiry
said person revealed his name and address. Thereafter, EI weighed the
ganja and found 200 grams of ganja and seized the same under seizure
mahazar and issued notice to accused under Section 41- A of Criminal
Procedure code. Thereafter EI returned to his office and registered a first
information report under crime No.25/2023-24/38IE/380308 against
accused No.1 under section 20(b)(ii)(A) & 8(c) of NDPS Act.
7) The Petitioner in this petition has urged the following grounds:
i) The Petitioner is absolutely innocent of the alleged
offence and he has falsely implicated in the case.

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ii) It is highly unbelievable that the accused was found
peddling ganja that too in a busy area that too in front
Hotel and it is so near to the respondent station.
iii) That, the alleged offenses are not punishable either
with death or imprisonment for life.
iv)The Respondent officials are frequently visiting the
working place and residence of the petitioner and
making hectic efforts to arrest the petitioner.
8)
Petitioner has filed this Criminal Miscellaneous petition under
Section 438 of Cr.P.C to release him on bail in the event of his arrest in
this case.
Section 438 of Cr.P.C. reads as under:
“ 438. Direction for grant of bail to person
apprehending arrest.(1) Where any person has reason to believe that he
may be arrested on accusation of having committed a
non -bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section
that in the event of such arrest he shall be released on
bail;
……………………………………………………………………………”.
As per Section 438 of Cr.P.C., this court can issue direction to
concerned police for release on bail of the person who has reason to
believe that he may be arrested on accusation of having committed a non
-bailable offence.

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9) In specification of the small and commercial quantity of Narcotic
Drug or Psychotropic Substance, SO 1055 (E), dated 19.10.2021 as
amended, issued by the Central Government at Serial
No.55, 1000
grams of ganja is specified as small quantity and 20 kg of ganja is
specified as commercial quantity. The ganja recovered in this case from
accused No.1 is 200 grams, which is small quantity.
10)
As per Section 20(b)(ii)(A) of NDPS Act, whoever, in
contravention of any provision of NDPS Act or any rule or order made or
condition of license granted thereunder produces, manufactures,
possesses, sells, purchases, transports, imports inter-state, exports interstate or uses cannabis which involves small quantity shall be punishable
with rigorous imprisonment for a term which may extend to one year, or
with fine, which may extend to Ten Thousand rupees, or with both.
11)
Section 36A of NDPS Act is related to the trial of NDPS
offences by special courts, which reads as under:
“36A. Offences triable by special courts
(1) all offences under this Act which are punishable with
imprisonment for a term of more than 3 years shall be
triable only by the special court constituted for the area in
which the offence has been committed or where there are
more special courts than one for such area, by such one of
them as may be specified in this behalf by the
Government;”.
12) Section 37 of NDPS Act reads as under:
“37. Offences to be cognizable and non-bailable;”
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As per Schedule II. Classification of offences against other laws if
the offence is punishable with imprisonment for less than three years or
with fine only the offence is non cognizable, bailable and triable by any
magistrate.
13)
By combine reading of specification of the small and
commercial quantity of Narcotic Drug or Psychotropic Substance, SO
1055 (E), dated 19.10.2021 as amended, issued by the Central
Government, Section 36A of NDPS Act, Section 37 of NDPS Act and
Schedule II. Classification of offences against other laws it is clear that
the offence alleged against accused No.1 in this case is non-bailable and
shall be triable by any magistrate.
14)
The EI has issued notice under section 41-A of Cr.P.C to
accused No.1 for his appearance before him for further investigation as
seized quantity of ganja was small quantity. The petitioner/ Accused No. 1
in this petition has stated that the respondent officials are frequently
visiting the working place and residence of the petitioner and making
hectic efforts to arrest the petitioner.
15)
The prosecution in the objection filed to this criminal
miscellaneous petition has contended that if the Accused No.1 is released
on anticipatory bail, he may commit the similar offences, tamper with the
prosecution witnesses and may not appear before the court. I am of the
opinion that the objection of prosecution can be met by imposing
conditions as stated in Section 437(3) of Cr.P.C.
16)
In view of the discussion, I made above, I come to an
opinion that, petitioner/ Accused No. 1 is able to show reason to issue an
interim order/ direction for grant of anticipatory bail. I answer point No.1
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in the Affirmative.
17)
Point No.2:- In view of the answer, I arrived to point No.1, I
proceed to pass the following:ORDER
The Criminal Miscellaneous Petition U/Sec.438 of
Cr.P.C filed by the petitioner/ Accused No. 1 is allowed.
The petitioner / Accused No. 1 is entitled to be
released on bail in the event of his arrest in Crime
No.25/2023-24/38IE/380308 registered by Respondent –
Inspector of Excise, Jnanabharathi Range, BUD-3, SUBDIV06 Bengaluru City, against accused No.1 for the offences
punishable under Sections 20(b) (ii) (A) & 8(c) of NDPS Act,
subject to following conditions:
1. The petitioner/Accused No. 1 is directed to appear
before the Investigation Officer within 15 days
from the date of this order.
2. On appearance of the petitioner/ Accused No. 1, he
shall be released on bail on his furnishing a
personal bond for a sum of Rs.10,000/- with one
surety for the like sum to the satisfaction of the
I.O.
3. The petitioner / Accused No. 1 shall not threaten or
try to tamper with the prosecution witnesses in any
manner.

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4. The petitioner/ Accused No. 1 shall not leave the
jurisdiction of the court without prior permission.
(Dictated to the Stenographer, typed by her, corrected, signed and pronounced in the open
court on this the 6th day of April, 2024).
Digitally signed by
RAGHAVENDRA
RAGHAVENDRA G
G
Date: 2024.04.08
10:31:04 +0530
(G. Raghavendra)
XXXIV Addl. City Civil & Sessions Judge
& Special Judge (NDPS), Bengaluru.