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 8th DAY OF DECEMBER 2022
Crl.Misc.No.11649/2022
Petitioner :
(accused No.6)
Vantal Keshava Rao,
S/o.Appalaswamy, a/a 50 years, r/at
Kadaparaya Village, Chintapalli Post,
Visakhapatnam, Andrapradesh
(By Sri Bhagya Lakshmi.SS, Adv.
V/S.

Respondent :
State by Annapoorneshwari Nagar PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.52/2022 of
Annapoorneshwarinagara
PS.,
registered
punishable U/Sec.20(b)(ii)(c) of NDPS Act.

for
the
offence
CCH­33
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Crl.Misc.No.11649/2022
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
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 72 Kgs., 85 grams of
ganja from the possession of the accused Nos.1 to 6.

The
petitioner herein is found to be in possession of narcotic
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CCH­33
Crl.Misc.No.11649/2022
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:
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:
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Crl.Misc.No.11649/2022
4
REASONS
7. POINT NO.1:­ A report submitted by PSI., who is the
complainant in this case before the Annapoorneshwari Nagar
PS. The contents of the report is here under:­
On 18.02.2022, at about 2.05 P.M. noon when the
complainant was in the station he has received credible
information that at Nagarabhavi 2 nd Stage Kottigepalya,
Kengeri Ring road at Lorry Stand, two persons were standing
in their Duo Vehicle bearing No.KA­53­EB­9503 for selling
Ganja to the Cooli Workers, Lorry Drivers and two others were
standing nearby the scooter. On receipt of the information he
has registered a Suo­motu case against unknown persons in
Crime No.52/2022 for the offence punishable under Sec.20 B
of NDPS Act. Thereafter, he has
informed the matter 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. They surrounded and apprehended the
said four persons. On personal search they have seized 7 Kg.,
350 grams of ganja from the accused Nos.1 to 4. Duo Vehicle
was seized.

A detail
seizure panchanama was drawn.

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Crl.Misc.No.11649/2022
5
Thereafter, he has prepared a detail report and submitted
before the SHO, which is the basis to register the case against
the accused
persons in Cr.No.52/2022 for the offence
punishable U/s.20(b) of NDPS Act. Accused nos.1 to 4 were
arrested and produced before court and remanded to Judicial
Custody.
In the voluntary statement of accused Nos.1 to 4 they
have revealed that they have purchased ganja from the
accused Nos.5 and 6 who are residents of Kadaparaya village,
Chintapalli
statement
taluk,
of
apprehended.

Vishakapatnam
accused
Nos.1
to
district.
4,
As
accused
per
the
No.6
was
On 27.2.2022 when the investigating agency
have been to Kadaparaya village and found the accused No.5
and when they were about to apprehend him, he has
absconded. Another person who was with accused No.5 was
apprehended by the police. In the voluntary statement he has
stated that he is doing the trade of ganja and he has supplied
to 60­70 Kgs., of ganja on 18.2.2022 to his customers at
Bangalore. He has stored the ganja at Ring road, Service road,
in a bush near Malai Madeshwara temple. He has shown the
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Crl.Misc.No.11649/2022
said ganja bags to the police, when it was weighed the weight
came around 65.5 Kgs. The said ganja was seized under the
mahazar. The accused No.6 is arrested, produced before the
court and is remanded to Judicial Custody.

The present
petitioner is accused No.6 in the case.
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 Sec.41, 42, 50, 52 and
47 of the Act 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.

9. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 10 years.

In the event of grant of bail he is going to
abscond and may hamper investigation.

7
10.

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Crl.Misc.No.11649/2022
On careful analysis of rival contentions and the
prosecution papers available on record the investigating
agency seized 72 Kgs., 85 grams of ganja under the seizure
panchanama.

The petitioner is in judicial custody since the
date of his arrest i.e., from 28.02.2022.

On looking to the
seizure panchanama the drugs seized is weighing 72 Kgs., 85
grams 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 drug­
ganja 1000 grams is small quantity and 20 Kgs., is commercial
quantity. In this case the quantum of ganja seized is 72 Kgs.,
85 grams which is a commercial quantity.
11. It is argued by the learned counsel for petitioner that
the petitioner is falsely implanted in the case.

Further, the
investigation in the case is concluded and charge sheet is filed.
Custodial detention of the petitioner is not warranted.

CCH­33
8
12.

Crl.Misc.No.11649/2022
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.104153/2021 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 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
CCH­33
Crl.Misc.No.11649/2022
9
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 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
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Crl.Misc.No.11649/2022
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.

By making a detail observation in granting the bail to the
accused held to be 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
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CCH­33
Crl.Misc.No.11649/2022
“reasonable grounds” means something more than
primafacie 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.

Further in the judgment of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001 (7) SCC
673 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 are not guilty of the
offences with which they are charged and further that they
are 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
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Crl.Misc.No.11649/2022
force regulating the grant of bail. Liberal approach in the
matter of bail under the Act is uncalled for.”
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 are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them 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 are 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 they are 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
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CCH­33
Crl.Misc.No.11649/2022
there are reasonable grounds for believing that the petitioner
are not guilty and that he is not likely to commit any offence
while on bail.
Further in another judgment of Hon’ble High Court of
Karnataka in a case Crl.Petition No.5358/2015 State of
Karnataka Vs., D.B.Sandeepa dt.3.3.2016 has observed
that 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 the present case the petitioner was apprehended
and he has shown the ganja bags which were hidden in a
bush.

The weight of the ganja which was stored by the
petitioner herein is 65 Kgs.,500 grams.

The quantity of the
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Crl.Misc.No.11649/2022
contraband seized at the instance of the present petitioner is
commercial quantity. At this stage, there are primafacie
materials available against the petitioner in regard to the
possession of narcotic drug. 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.

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 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 8th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.