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 2 nd DAY OF AUGUST 2022 Crl. Misc.No.6854/2022 Petitioner : Aswin Samuel John, (Accused No.2) S/o Baby John, aged about 22 years, R/at Marottiparambil, Kanjiram Post, Thiruvarpu, Kottayam, Kerala (By Sri Siji Malayil, Adv.) V/S. Respondent : State by Soladevanahalli Police Station (By Public Prosecutor) O R D E R The present petition U/Sec.438 of Cr.P.C., is filed by the petitioner to enlarge him on bail, in the event of his arrest in Cr.No.92/2022 of Soladevanahalli PS., registered for the offences punishable U/Sec.20(b) 20(b)(i) and 22(c) 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. Only on the voluntary statement of the co- accused this petitioner is arrayed as accused. He apprehends arrest in the hands of respondent police. In the event of his arrest he would be put to untold hardship. 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 1580 grams of ganja, 1 kg 960 grams Weed oil, 154 Plastic Cans containing weed oil totally 1,188 grams and other materials which is a commercial CCH-33 3 Crl.Misc.6854/2022 quantity from accused No.1 and 3. On enquiry accused Nos.1 and 3 have stated that they have purchased the contraband from the present petitioner (A.2). As such 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. If the petitioner is granted bail he may tamper with the prosecution witnesses. He may involve himself in similar offences. Investigating agency by complying the provisions prevailed under the act has seized the contraband from the accused Nos.1 and 3. 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 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 anticipatory 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 P.I, Soladevanahalli PS., Bangalore
has put the criminal law into motion. The gist of the allegation reads as here under:- On 11.5.2022 at about 11.00 am., when the complainant was in the station he has received credible information that near Chikkabanavara Railway Parallel road some persons are selling weed oil and ganja to the public. He has informed the matter to ACP and obtained permission to conduct raid. He has called the panchas. He has been to the spot and apprehended 2 persons. On enquiry they revealed their names and addresses. They are one Subin Binoy and Mohammed CCH-33 5 Crl.Misc.6854/2022 Irfan that is accused No.1 and 3 herein. Asst. Commissioner of Police was called to the spot to conduct personal search. During personal search of A1 and 3, 10 grams of ganja in 10 packets and 8 to 10 grams of weed oil in 12 plastic pockets were found. After seizing the contraband and on enquiring them they have stated that they are R/at Flat No.1016, 10 floor of Desire Apartment they are staying along with one Sojin, Kiran Kumar, Anandu Murali and Mohammed Shiyas that is accused Nos.4 to 7. The accused No.1 and 3 were selling ganja and weed oil along with other accused. At the instance of accused 1 and 3 search was conducted in flat No.1016 of Desire Apartment. In the said apartment accused no.4 to 7 were found. During the house search 1580 grams of ganja, 1 Kg., 960 grams of weed oil, 1188 grams of weed oil, 1 weighing machine, vessels were found. The said articles were seized under Panchanama. Accused Nos.1, 3 to 7 were arrested. Thereafter, basing on the report of raiding officer, a case in crime No.92/2022 is registered against accused No.1 to 7 for the offences punishable U/sec. 20(b), 20(b) (i), 22(c) of N.D.P.S. Act. The present petitioner is accused No.2. He is not arrested by the investigating agency and he is shown as absconding.
8. It is vehemently argued by the learned counsel for
the petitioner that the mandatory provisions of law have not been followed thereby causing serious doubt on the investigation, search and seizure procedure. He is no way connected to the drugs which were seized in the case. 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 it is punishable with RI upto 20 years. The petitioner may involve in similar offence, if he is released on bail. 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 1580 grams of ganja, 1 kg 960 grams Weed oil, CCH-33 7 Crl.Misc.6854/2022 154 Plastic Cans containing weed oil totally 1,188 grams and other materials of MDMA under the seizure panchanama from accused Nos.2 narcotic drugs 3. As per the investigation papers accused No.2 i.e., the present petitioner has supplied drugs to accused Nos.1 and 3. 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.23 Hashish Oil the narcotic drug – weighing 1 Kg. is a commercial quantity. As per Sl.No.55 commercial quantum of ganja is 20 kgs. In the present case 1580 grams of ganja, 1 kg 960 grams Weed oil, 154 Plastic Cans containing weed oil totally 1,188 grams and other materials of narcotic substance is seized. The weed oil seized in the case is a commercial quantity.
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 “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 of 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 CCH-33 9 Crl.Misc.6854/2022 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." 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 this case, in all 1580 grams of ganja, 1 kg 960 grams Weed oil, 154 Plastic Cans containing weed oil totally 1,188 grams and other materials seized from the accused Nos.1 and 3. the present petitioner is the supplier of contraband to the accused No.1 and 3. As per the investigation papers, accused No.1, 3 along with other accused were doing the sale of contraband. The petitioner herein is CCH-33 11 Crl.Misc.6854/2022 providing the contraband to the other accused. At this stage, there is primafacie material available against the present petitioner that he has supplied the contraband to the accused Nos.1 and 3. The learned counsel for petitioner has failed to place any material before this court to show that the present petitioner is no way connected to the crime. In the result, I proceed to hold that the petitioner herein has not made out any grounds to entertain his prayer for extraordinary relief of anticipatory bail. Accordingly, I answer point No.1 in the negative.
12. Point No.2:- In the result, I proceed to pass following:
ORDER
The petition filed by the petitioner U/Sec.438 of Cr.P.C is hereby rejected. [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 2nd day of August 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. PST/*