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 5th DAY OF January 2023
Crl. Misc.No.10265/2022
Petitioner :
(accused)
Yash Kapoor, S/o.Sri.Daljith Singh
Kapoor, a/a 36 years, R/at No.204,
Silver Oaks, Garden Apartments,
Vittal Malya Road, Opp UB City, Shell
Petrol Pump, Bengaluru560 001
(By Sri. S.G., Adv.)
V/S.
Respondent :
State by Customs and Excise PS
(By Public Prosecutor)
ORDER
This is the interim bail petition U/Sec.439 of Cr.P.C.,
filed by the petitioner to enlarge him on bail in Crime
No.GEN/INV/OTH/131/2022HPU
O/o
CommrCusCity
2
Bengaluru registered for the offences punishable U/Sec. 20,
23, 27 & 28 of N.D.P.S. Act,
2. The prevalent grounds urged seeking bail:
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 substance alleged to have recovered are
6 strips/packets of microdosing truffles weighing 75 grams
and 3 packets of magic truffles psilocyte atlantis weighing 50
grams containing psychotropic substance Psilocybine.
The
extracted quantity from the said substance may be 2
milligrams per each gram.
The extracted portion may not
cross even two grams of total substances alleged to have
recovered.
The petitioner wife is under treatment of fertility
considering the age factor if the treatment is discontinued her
chances of on going pregnancy would be reduced. The
petitioner
is
diagnoised
with
hyperthyroidism
and
has
CCH33
Crl.Misc.10265/2022
3
evaluated abnormal result in liver and kidney and same
requires treatment.
psilocybine
and
He is unaware of the presence of
psychotropic
substance
in
the
magic
mushroom. He has no bad antecedents and he has never
involved in any offence. As the father of petitioner was ill, this
court has granted interim bail to the petitioner. He is working
as Associate software architect and he has joint a new
company in the month of July 2022, any discontinuation leads
to job risk. If the petitioner is enlarged on bail he is ready to
offer surety for his due appearance before this court for the
purpose of trial and before the IO., for investigation. Hence, he
has sought bail.
3. The IO., the Inspector of Customs represented by
prosecutor filed objections contending that petitioner has
booked the parcel of 255 grams of magic truffles psilocyte
Atlantis.
The
parcel
was
containing
some
instruction
slips/packing papers, micro dosing truffle was 75 grams and
that of 3 packets of magic truffles psilocyte Atlantis was 50
grams. The parcel was booked by the petitioner from
Netherlands.
When
the
parcel
was
intercepted
it
was
4
containing the contraband. It was addressed to the petitioner.
To intercept the actual recipient of the parcel controlled
delivery operation was send. During delivery operation the
petitioner was held by the customs and further during enquiry
he has revealed that he has booked the parcel. Now, the case
is under investigation. If he is enlarged on bail he may abscond
and may hamper the investigation and trial. Hence, sought to
reject the bail application.
4. Heard learned counsel for the petitioner and the
prosecution.
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.10265/2022
5
REASONS
7. POINT NO.1: The Inspector of Customs is the
complainant in the case. As per the investigation papers the
allegations against the petitioner is he has booked the parcel of
contraband to the tune of 255 grams containing magic truffles
psilocyte Atlantis. The inspector of Customs while scanning a
parcel with the tracking No.RV000406085FR declared to
contain 9 microseal, having total value declared as 72.75
Euros, shipped from Rm 2920, Rjn 12 2491BG Den Haag,
Netherlands 532240 to the consignee namely Sri Yash K, 204,
Silver Oaks, Garden Apartment, Vittal Malya road, opposite UB
City
Shell
Petrol
Pump,
Bangalore
having
contact
No.8105327400. On the suspicion that it may contain
narcotics was opened and examined.
The description of the
parcel was declared as 9 micro seal. During open examination
the parcel contained 6 strips each containing 6 units of
brown/dark brown substances and three transparent packets
containing light brown coloured substances. The parcel was
found to contain an invoice dated 21.9.2022 bearing consignee
details as Yash K with the aforesaid phone details. After
6
examining the same it is found to be magic truffles psilocyte
Atlantis which is a contraband. After controlled delivery
petitioner who came to collect the parcel was enquired and he
has admitted that the said parcel was booked by him. He was
apprehended. His statement came to be recorded. In the said
statement he has stated that since he is suffering from
persistent headache which caused depression like symptoms
he has seen a web series wherein he came to know about
Psilocybine and other drugs. He has placed the order for
Psilocybine from the wed site www.wholecelium.dcom on
18.9.022 and paid an amount of Rs.6872.84ps., through
Bitcoin as it was the only way to make the payment for Indian
subcontinent. The payment of Bitcoin was made through his
coin base wallet.
He had purchased Bitcoin in his Wazir X
wallet which was then transferred to his coin base wallet for
buying Psilocybine truffles. Thereafter, the parcel was collected
by him. After recording the statement, petitioner was arrested,
produced before the court and he was remanded to judicial
custody. He was prosecuted in No.GEN/INV/OTH/131/2022
CCH33
Crl.Misc.10265/2022
7
HPU O/o CommrCusCityBengaluru registered for the
offences punishable U/Sec. 20, 23, 27 & 28 of N.D.P.S. Act.
8. On going through the allegations levelled against the
petitioner, the petitioner has booked psilocybine truffles
contraband through post. Through control delivery operation
he was apprehended by the investigating agency. The quantum
of contraband seized in the case is commercial quantity. 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.145 the narcotic drug Psilocybine 02
grams is small quantity and 50 grams is commercial quantity.
In this case the quantum of psilocybine seized is 255 grams.
9. The petitioner herein has been granted interim bail by
this court for a period of 3 months on different dates to take
care of his father. Now, this court is considering the bail plea
of petitioner basing on the materials presented by the
prosecution.
As per the prosecution papers petitioner has
booked commercial quantity of psilocybine contraband.
The
8
parcel is addressed to the petitioner. When he came to collect
the parcel he was apprehended.
His statement came to be
recorded. In his statement he has stated that he has booked
the parcel from Netherlands. The contraband booked by the
petitioner herein is magic Truffles psilocyte Atlantis. The total
quantum of contraband booked by petitioner is 255 grams
magic truffles psilocyte atlantis. As per the afore referred
notification 255 grams of magic truffles psilocyte atlantis
quantum is commercial quantity.
The contention of learned
counsel for petitioner that no test conducted to ascertain the
contraband as Psicloybine. As per the investigation papers the
parcel is booked by the petitioner and on the alleged parcel is
was declared as 9 micro seal. The total value of the said parcel
is declared as 72.75 Euros European currency addressed to
the petitioner herein. The parcel is intercepted at foreign post
office. On verifying the description of the items through the
Overseas
suppliers
website
hhttps://www.microdose.nl/en
/microdosingxptruffles it is found that they appear to be 6
quantities of micro dosing truffle strips weighing 75 grams and
three packets of magic truffles psilocybine atlantis weighing 50
CCH33
Crl.Misc.10265/2022
9
grams.
As per the description of the products on the above
website the contents of the parcel is psychotropic substances
which are banned for import into the country as per the
provisions of NDPS Act.
During control delivery operation
when the dummy parcel was delivered to the address of the
petitioner he has acknowledged the same and paid Rs.3,000/
towards the customs duty and postal charges. When he was
carrying the parcel inside the flat he was intercepted by the
customs officials and on enquiry he has disclosed the booking
of psilocybine from foreign country.
10. In his statement before the IO., he has stated that as
he was suffering from persistent headache, he has taken
medication for that. After trying all the possible means he lost
hopes of getting cured. He has watched a web series how to
change your mind at Netflix and came to know about
psilocybine and other drugs. He did a lot of research on the
Internet about the psilocybine and came to know about it
being a possible cure to persistent headaches and depression,
that he had been suffering.
He has also checked it in a
website www.wholecelium.com where order for psilocybine in
10
the form of truffles could be placed and could be delivered to
his address. He has placed the order for truffles through the
website and paid an amount of Rs.6,872.84 through Bitcoin as
it was the only way to make the payment for Indian sub
continent.
The payment of Bitcoin was made through his
coinbase wallet.
He had purchased Bitcoin in his wazir X
wallet which was transferred to his Coin base wallet for buying
psilocybine truffles.
He has also enquired the status of the
order on the website www.wholecelium.com and came to know
that the parcel containing the truffles that he had ordered had
been dispatched. On 13.10.2022 he got a call from postman
reporting about the parcel which is being imported from
Netherlands.
parcel.
On paying the charges he has collected the
On looking to the statement of petitioner and the
materials collected by the investigating agency the petitioner
herein having knowledge of the psilocybine truffles which is a
banned contraband has booked the parcel of psilocybine
through the website by paying money through Bitcoin. He is
having knowledge of the consequences of law while booking the
parcel of contraband from a foreign country.
11
11.
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Crl.Misc.10265/2022
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.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 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
12
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 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
13
CCH33
Crl.Misc.10265/2022
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 is 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
14
“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 himself 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 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 dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:
15
CCH33
Crl.Misc.10265/2022
“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.”
As per the enunciation of law in the aforesaid 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.
Here in the present case the petitioner has
booked the contraband parcel from a foreign country.
The
quantity of the contraband is commercial quantity. At this
16
stage, there are primafacie materials available against the
petitioner in regard to the knowledge of contraband which is
being booked by him is a banned narcotics. 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.
12. 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 5th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*