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 1 7 th DAY OF DECEMBER 2022 Crl.Misc.No. 11535/ 2022 Petitioner : Appu @ Surya @ Batani, (accused No.3) S/o.Ramaswamy, a/a 27 years, R/o. 72/1, Queens Road, Rajiv Gandhi Colony, Shivajingar, Bengalruru-01 (By Sri.Rajan.Y.Adv.) V/S. Respondent : State by Bengaluru Contonment Railway PS (By Public Prosecutor) O R D E R The present petition is filed by the petitioner U/s.167(2) of Cr.P.C., to enlarge him on statutory bail, in Cr.No.14/2022 of Bengaluru Cantonment Railway PS of U/Sec 20(c) & 22(c) of NDPS Act.
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 is no recovery of contraband from the present petitioner. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. Investigation is concluded and charge sheet is filed. Further detention of petitioner is not warranted. 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 20 Kg 500 gram of ganja CCH-33 Crl.Misc.No.11535/2022 from the possession of the accused. The accused is found to be in possession of narcotic substance. A detailed mahazar is drawn in the spot. The offence alleged against the petitioner is punishable with rigorous imprisonment for a term which shall extend upto 10 years. There is a prima-facie 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 Affirmative Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- The PSI of Bengaluru cantonment
Railway PS., has put the criminal law into motion. The gist of the allegation reads as here under:- On 24.02.2022 at about 17:45 hours,, complainant was on patrolling duty looking for the persons who transport narcotic drugs in the railways. The complainant and his staff came in the train from Bangarpet to Bangalore. When they came to the end of platform No.4 towards Whitefield they got down from the train and started watching the passengers getting down from the train. A person carrying two bags got down from the train and was sitting on the bench. On suspicion they enquired him. He has stated that he is carrying ganja in the bags which he bought from Andhra Pradesh to give the same to accused No.2 who is standing at short distance. On seeing them, accused No.2 tried to escape. They surrounded and apprehended both the accused. On search of the bag they found 20 Kgs., 500 grams of ganja. The entire quantum of ganja and the vehicle was seized. A detail mahazar is drawn and the accused were arrested. A detail report is prepared submitted before SHO. The said report is the basis CCH-33 Crl.Misc.No.11535/2022 to the register case is against the Accused in crime No.14/2022 for the offence punishable under Sec.20(c), 22(c) of NDPS Act. During the voluntary statement of accused Nos.1 and 2 they have stated that accused No.3 had purchased contraband from accused No.1 and is selling to the public. Basing on the statement of accused No.1 and 2, accused No.3 is arrested. No incriminatory article is seized from him. He is 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 residents 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 20 Kg 500 grams of ganja is seized from the accused Nos.1 and 2. The offence punishable with imprisonment upto 10 years and with fine. There are primafacie material available against him.
10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on 09.12.2022 complainant has conducted raid and apprehended accused. On looking to the seizure panchanama the drugs seized from accused is weighing 20 Kg 500 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 20 Kgs. 500 of ganja is an Commercial quantity. The present petitioner is secured under NBW on 14.8.2022. He is produced before the court and remanded to Judicial Custody. There is no recovery at the instance of the present petitioner. The only allegation agaisnt him is he has procured ganja from accused No.1. but in regard to that except the say of accused No.1 there is no CCH-33 Crl.Misc.No.11535/2022 monitory transaction documents collected. No CDRs pertaining to accused No.1 and present petitioner is collected. The petitioner herein is in Judicial Custody since from 14.8.2022. the investigation in the case is concluded and charge sheet is filed. Further custodial detention is not warranted. 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. 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. The offence alleged against the petitioner is not
punishable with death or imprisonment for life. Further custodial interrogation is not warranted. His Voluntary statement is already recorded. 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.
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 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. He shall not leave the jurisdiction of this court without prior permission.
2. He shall not tamper the witness or abscond.
3. He shall not commit similar offence or any offence while on bail.
4. He shall furnish his photo ID proof and photo ID proof of his sureties.
5. He shall appear before the court on all hearing dates.
6. Breach of any of the conditions by the
CCH-33 Crl.Misc.No.11535/2022 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 17th day of December 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*