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 4 th DAY OF AUGUST 2022
Crl. Misc.No.7269/2022
Petitioner : Abdul Subhan @ Mosin (accused No.6) S/o. Abdul Hameed, Aged about 21 years, R/at. D No.22/11, Papanna Building Line, Govindpura, Bengaluru-560 045 (By Sri.MKV, Adv.)
V/S.
Respondent : State by Avalahalli PS. (By Public Prosecutor)
O R D E R
The present petition U/Sec.439 of Cr.P.C., is filed by the petitioner to enlarge him on bail, in Cr.No.249/2022 of Avalahalli PS., registered for the offence punishable U/Sec.8(c), 22(c) of NDPS Act.
2. The grounds urged by the petitioner for grant of bail are as under: That the petitioner is 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 offences are non bailable, but is neither punishable with imprisonment for life or death sentence. The procedure contemplated under N.D.P.S. Act not followed while recovery. The petitioner is permanent resident of the address 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 7.9 grams of MDMA from the accused Nos.1 to 3 and 6.8 grams from accused No.4. The offences alleged against the petitioner is punishable with rigorous imprisonment for a term upto 20 years and shall also be liable to fine. There is a primafacie case available against CCH-33 Crl.Misc.No.7269/2022 the petitioner. He is habitual drug dealer. There is prima-facie case made out against petitioner. If petitioner is released on bail, he will continue the profession of narcotic drug selling, and he may abscond and tamper evidence of the prosecution. 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:
REASONS
7. POINT NO.1:- A report submitted by PSI, Avalahalli., who is the complainant in this case before the Avalahalli PS. The contents of the report is as here under:- On 29.06.2022 at about 7.00 am., when the complainant was on patrolling duty he has received credible information that accused Nos.1 to 3 were selling prohibited psychotropic MDMA crystal and Unlawfully making money in the premises of DRDO compound, near Jyothipura gate, Devanahalli road, Bydarahalli Hobli, Bengaluru East Taluk. He has informed the matter to the Higher Officer and obtained permission to conduct raid. He went to the spot and apprehended accused Nos.1 to 3. On enquiry they revealed their names and addresses. On personal search of the accused persons the IO., has seized 6.8 grams of MDMA. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared & submitted before SHO which is the basis to register the case against the accused Nos.1 to 3 in Cr.No.249/2022 of Avalahalli PS registered for the offence punishable U/Sec. 8(c), 22(c) of NDPS Act. Thereafter the accused were arrested and produced before jurisdictional Magistrate and were remanded to JC. During further investigation of the case accused No.6 was apprehended and they have seized 2.4 grams of MDMA. He was arrested and produced before the court and remanded CCH-33 Crl.Misc.No.7269/2022 to judicial custody. The present petitioner has given financial assistance to A2 to purchase MDMA. The present petitioner is also selling MDMA and the profit acquired out of sale is to be shared among them. On 3.7.2022 at 4.00 pm., the present petitioner is arrested. His voluntary statement came to be recorded. He has stated that he is in possession of 7 MDMA ecstasy pills weighing 2.4 grams.
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. It is argued by the prosecution that the petitioner has committed heinous offence 9.2 grams MDMA is seized from the petitioners herein. The offence punishable with imprisonment upto 10 years and with fine. There are primafacie material available against them.
10. On careful analysis of rival contentions and the prosecution papers available on record, it is evident that PSI, Avalahalli police station has conducted raid and apprehended the petitioner. On looking to the seizure panchanama the quantum of contraband seized from accused Nos.1 to 3 is 6.8 grams of MDMA and from accused No.6/present petitioner the quantum of contraband seized is 2.4 grams of MDMA on 3.7.2022. 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.134 the narcotic drug MDMA 0.5 grams is small quantity and 10 grams., is commercial quantity. In this case the quantum of MDMA seized from accused Nos.1 to 3 and accused No.6 is 9.2 grams is 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 MDMA, which is a CCH-33 Crl.Misc.No.7269/2022 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. 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 6.8 grams of MDMA from accused No.1 to 3 and 2 grams from the present petitioner 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 life. Further custodial interrogation is not warranted. 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 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 co-operate with I.O for investigation.
5. He shall not commit similar offence or any offence while on bail.
CCH-33 Crl.Misc.No.7269/2022
6. He shall furnish his photo ID proof and local address proof document before the court and photo ID proof of his sureties.
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioners would entail cancellation of bail.
[Dictated to the Judgment Writer, directly on the computer, typed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 4th day of August, 2022 (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. Pst/-