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 9th DAY OF DECEMBER 2022
Crl. Misc.No.11534/2022
Petitioner :
(accused No.7)
Yashwanth @ Yash,
S/o.Siddalingegowda,
a/a 22 years,
R/at No.7/2, 14th Main ,
2nd Cross, Vivekananda nagar,
Kathriguppe,
Bengaluru­560085
(By Sri Veeresha.E, Adv.)
V/S.

Respondent :
State by Hanumanthanagar Police
Station
(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.152/2022 of
2
Hanumanthnagar PS., registered for the offences punishable
U/Sec.20(b) (ii) (c), 27(A) 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. There is no connection or active part played
by this petitioner. There is no recovery from the present
petitioner. As per the prosecution they have seized the drugs
from the house of petitioner. Petitioner is permanent resident
in the address as 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 2.084 Kgs of Hashish Oil
3
from the accused.

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Crl.Misc.11534/2022
The weed oil seized is a commercial
quantity. There are sufficient materials available against the
petitioner and 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.

In the event of his release he
may tamper with the prosecution witnesses.

Incriminatory
articles were seized from his custody. He may involve himself
in similar offences.

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 learned counsel for the petitioner and the
prosecution.
5. The points that arise for my consideration are as here
under:
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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:
REASONS
7.

POINT
NO.1:­
The
PI,
Hanumanthanagar
PS.,
Bangalore has put the criminal law into motion. The gist of
the allegation reads as here under:­
On 07.06.2022 at about 2.30 pm., when the complainant
was on patrolling duty, received information from informant
that
5 unknown persons came in car at BWSSB Park, Near
PES College, BSK 1st Stage, Hanumanthanagara, Bengaluru
with in the limits of Hanumanthanagar PS. He has informed
the matter to ACP and obtained permission to conduct raid. He
along with his staff and panchas went to the spot mounted
surveillance at that time 05 persons came their in a car
bearing No. KA05­MX 6484 when they were handing over a
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Crl.Misc.11534/2022
5
bag to the other persons who were standing in the spot they
were surrounded. On enquiry the accused have revealed their
names
and
addresses.

During
personal
search
the
complainant has seized 2.084 Kgs of Hashish Oil. A detail
mahazar was drawn at the spot. Thereafter, basing on the
report of raiding officer, a case in crime No.152/2022 is
registered against against accused for the offences punishable
U/sec.20(b) (ii) (c), 27(A) of N.D.P.S. Act. The present petitioner
is accused No.7 in the case.
8. It is vehemently argued by the learned counsel for the
petitioner that petitioner is falsely implicated in the said case.
The quantity seized from the possession of the accused is less
than commercial quantity. The major portion of investigation is
concluded. Custodial interrogation is not warranted. She is
entitled for bail.

9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were seized from his
custody. There are prima­facie material available against him.

6
10.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 2.084 Kgs of Hashish Oil. As per specification of
small
and
psychotropic
Department
commercial
substance
of
Revenue
quantity
issued
by
of
narcotic
Ministry
Notification
drug
of
S.O.1055(E)
or
Finance
dated
19.10.2001 Sl.No.23 the narcotic drug – Hashish oil weighing
1 Kg., is a commercial quantity. In the present case the
hashish weighing 2.084 Kgs is a commercial quantity. In the
voluntary statement of the accused have stated that they have
purchased the contraband from one Rohan of Hassan.

11.

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
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CCH­33
Crl.Misc.11534/2022
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 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.”
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13. 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 co­
accused.
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.

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Crl.Misc.11534/2022
14. 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
“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
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 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
10
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:­
“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.”
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Crl.Misc.11534/2022
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 the instant case 2.084 Kgs of Hashish Oil
was seized. The quantity of contraband is commercial quantity.
At this stage, there is primafacie material available against the
petitioner in regard to the possession of narcotic drug.

The
learned counsel for petitioner has failed to place any material
before this court that he was not in possession of NDPS article
at the time of his apprehension and search. Further, the
petitioner is having criminal antecedents.

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.
15. Point No.2:­ In the result, I proceed to pass following:
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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 9th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*