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 16th DAY OF SEPTEMBER 2022
Crl. Misc.No.8912/2022
Petitioner :
(accused No.1)
Yasir Arfath @ Fayaz,
S/o Abeebulla,
Aged about 33 years,
R/at: No.373, 7th Cross,
Indira Colony,
West of Chord Road,
Rajajinagara, Bengaluru.
(By Sri. Venkatesh K., Adv.)
V/S.
Respondent :
State by SHO Kengeri 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.45/2022 of
SHO Kengeri PS., registered for the offence punishable
U/Sec.20(b), of NDPS Act.
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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 1 Kg., 200 grams of
ganja from the possession of the accused. The accused is
found to be in possession of narcotic substance. A detailed
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3
mahazar is drawn in the spot. Personal search is conducted
through ACP. 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.
dealer.
He is an habitual drug
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 Affirmative
Point No.2: As per the final order for the following:
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REASONS
7. POINT NO.1: A report submitted by PSI., who is the
complainant in this case before the SHO Kengeri PS. The
contents of the report is here under:
On 03.02.2022, at about 16.00 hours., when the
complainant was in the station he received credible
information that near the Kengeri Police station jurisdiction
at the office of the ICI near Forest Layout two persons were
selling the ganja to the public, college students and others
on a motor bike. On confirming about the information he
has registered a suomoto case in Cr.No.45/2022 against
the unknown persons for the offence punishable U/s.20(B)
of NDPS Act. Thereafter, he has informed to ACP, obtained
permission to conduct raid.
He along with his staff and
panchas has been to the spot at about 5.10 pm., and
mounted surveillance.
The informant had showed the
suspected two persons who were there on a bike and selling
contraband
to
the
public.
The
said
persons
were
surrounded and on enquiry they have revealed their names
and addresses.
They have also revealed that they are in
possession of ganja.
When the bag which was in the
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custody of the said persons was checked it was found to
contain ganja.
The ganja which was found in the
possession of the accused persons was weighed it was 1 Kg.,
200 grams. Contraband was seized under a detail seizure
panchanama.
station
and
Accused were arrested and brought to the
on
recording
their
statement
they
were
produced before the 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 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.
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10. On careful analysis of rival contentions and the
prosecution papers available on record the investigating
agency seized 1 Kg., 200 grams of ganja under the seizure
panchanama. The petitioner is in judicial custody since the
date of his arrest i.e., from 3.2.2022.
On looking to the
seizure panchanama the drugs seized is weighing 1 Kg., 200
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 drugganja 1000 grams is small
quantity and 20 Kgs., is commercial quantity. In this case
the quantum of ganja seized is 1 Kg. 200 grams which 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:
Ss.37 and 20 – Bail – grant of – non commercial quantity
– quantity involved being only 14 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.
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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 1 Kg., 200 grams 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. The
offence alleged against the petitioner is not punishable with
death
or
imprisonment
for
interrogation is not warranted.
life.
Further
custodial
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
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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 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.
with
I.O
for
5. He shall not commit similar offence or
any offence while on bail.
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6. He shall furnish his photo ID proof and
photo ID proof of his sureties.
7. He shall appear before the court on all
dates of hearing.
8. Breach of any of the conditions by the
petitioner would entail cancellation of
bail.
[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 16th day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*