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 17 th DAY OF SEPTEMBER 2022 Crl. Misc.No.8314/2022 Petitioner : Asif Mohammed Asif, S/o Abdul (accused.2) Khadar, aged about 28 years, R/at Melkar village, B.C. Road Post, Bantwal Taluk, Dakshina Kannada. (By Sri MB., Adv.) V/S. Respondent : State by Kodigehalli Police (By Public Prosecutor) O R D E R This is the second bail petition U/Sec.439 of Cr.P.C., filed by the petitioner to enlarge him on bail, in Cr.No.167/2021 of Kodigehalli PS., registered for the offences punishable U/Sec. 20B 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. On the voluntary statement of accused No.1 this petitioner is falsely implicated by the respondent in this case. Petitioner is working as a driver under accused No.1, but he is not connected with the alleged crime. Investigation is completed and charge sheet has been filed. 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. The procedure contemplated under N.D.P.S. Act not followed while recovery. 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 11 Kgs., of Ganja Oil, and 250 grams of Ganja from the accused persons. The ganja oil seized is a commercial quantity. There are sufficient materials CCH-33 Crl.Misc.8314/2022 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. 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. 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:
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 PSI, Kodigehalli PS., Bangalore has
put the criminal law into motion. The gist of the allegation reads as here under:- The PSI., Kodigehalli received credible information about sale of ganja and ganja oil on 03.12.2021 by anonymous persons at Flyover, Hebbal. After receipt of the information he has prepared a report and registered a case in Cr.No.167/2021 against unknown persons for the commission of offence punishable U/s.20(b) of NDPS Act. Thereafter, he has conducted raid and apprehended accused No.1 and seized 11 Kg Ganja Oil, 250 grams Ganja and one Lenova Mobile phone. He was arrested. In the voluntary statement of A1 he has revealed that accused Nos.2 and 3 have supplied contraband. Thereafter, accused No.2/present petitioner was apprehended. In the voluntary statement of A2/present petitioner has revealed that on 2.12.2021 he along with other accused had purchased 11 Kgs., hashish oil and 250 grams of ganja from a CCH-33 Crl.Misc.8314/2022 person of Rajamandri, Andhra Pradesh and they have kept the same in the house Anoop, Roshan and Arjun at Bidrahalli. When the said Anoop, Roshan and Arjun were selling the contraband on 3.12.2021 below the Hebbal fly over, police have apprehended Anoop/accused No.1.
8. It is vehemently argued by the learned counsel for the
petitioner that petitioner he is falsely implicated in the said case. The quantity seized from the possession of the accused No.1 is less than commercial quantity. The major portion of investigation is concluded. Custodial interrogation is not warranted. He 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.
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating agency seized seized 11 Kg Ganja Oil, 250 gms Ganja and one Lenova Mobile phone worth Rs.3,30,00,000/ under the seizure panchanama. 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 Sl.No.23 the narcotic drug – ganja oil weighing 1 Kg., is a commercial quantity. In the present case 11 Kgs., of ganja oil is seized which is a commercial quantity. The present petitioner had purchased hashish oil from a person of Rajamandri and has kept it in the house of accused No.1. When accused No.1 was under the Hebbal fly over along with other accused he was apprehended. The present petitioner is also prosecuted in Cr.No.123/2019 U/s.8(c), 21(c), 20(b)(ii)(c) of NDPS Act of Suddaguntepalya PS.
11. The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. 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 CCH-33 Crl.Misc.8314/2022 “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 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 CCH-33 Crl.Misc.8314/2022 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 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. Here in the present case the accused No.1 was apprehended and seized 11 Kgs., Ganja Oil, 250 grams Ganja and one Lenova Mobile phone worth Rs.3,30,00,000/ seized. The present petitioner after purchasing the contraband in question stored in the house of accused No.1. The quantity of contraband is commercial quantity. The materials collected by the investigating agency at this stage indicates that the petitioner herein has actually involved in the transport, sale of contraband. Mere non recovery of contraband from the possession of present petitioner would not exonerate him from the charges. As provided U/s.20 of NDPS Act who ever in contravention any provision of this Act cultivates cannabis plant possesses sells transports imports are punishable under the act. As per Sec.21 who ever manufactures, possess, sells, purchase, transport, imports any manufactured drug shall be liable for punishment. As per Sec.22 who ever manufactures, possess, sells, purchase, transport, imports any psychotropic substance shall be liable for punishment. At this stage, there is primafacie material available against the petitioner that collected the commercial quantity of contraband and stored in the house of A1. The learned counsel for petitioner has failed to place any material before this court that he was not involved in transport, sale of contraband. In the result, I proceed to hold that the petitioner herein has not made out any grounds to entertain their 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
CCH-33 Crl.Misc.8314/2022 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 17th day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*