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 20 th DAY OF SEPTEMBER 2022 Crl. Misc.No.8941/2022 Petitioner : Irfan Khan, S/o Late Bashir Khan, (accused No.3) aged about 39 years, R/at No.47, 4th cross, Kaveri Nagar, R.T Nagar, Bengaluru. (By Sri. CE., Adv.) V/S. Respondent : State by SHO, Madanayakanahalli PS (By Public Prosecutor) O R D E R This is the bail petition U/Sec.439 of Cr.P.C., filed by the petitioner to enlarge him on bail in Crime No.319/2022 of Madanayakanahalli Police Station registered for the offence punishable U/Section 20(B) 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. 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 51 Kgs., of Ganja from the possession of the accused persons. The offence alleged against the petitioner is punishable with rigorous imprisonment for a term which shall not be less than 10 years which may extent to 20 years and shall also be liable to fine. There is a primafacie case available against the petitioner. He is habitual drug peddler. If he is released on bail, he may continue the profession of narcotic drug selling, and may abscond and tamper evidence of the prosecution. Hence, sought to reject the bail plea of petitioner. CCH-33 Crl.Misc.8941/2022

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 Affirmative Point No.2: As per the final order for the following:

REASONS

7. POINT NO.1:- The PSI., Madanayakanahalli

presented a report before SHO., which is the basis to register the case against the present petitioner and other accused in Cr.No.319/2022 for the offences punishable U/s.20(B) of NDPS Act. As per the details of the report, when the PSI., Madanayakanahalli was in his office has received a credible information on 3.7.2022 at about 1.00 pm., that at a public place located at 2nd Cross, 2nd Main, Navile layout, Madavara village, Dasanapura Hobli, Bangalore North taluk the accused persons are engaged in drug trafficking in a car bearing No.KA 50 M 6711 and a two wheeler bearing No.KA 03 HN 9579. On receipt of the information he has informed to his higher officer and obtained permission to conduct raid. He along with his staff and panchas went to the spot and found the suspected persons. He has apprehended accused Nos.1 and 2 and on enquiry, they have revealed their names and identity. During search of the car complainant seized 51 Kgs., of ganja kept in bags under mahazar. Accused No.3/present petitioner escaped from the spot. Accused Nos.1 to 3 have purchased contraband ganja from accused No.4 who is not yet secured by investigating agency. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared and submitted before SHO. Basing on the report, a case in Cr.319/2022 is registered for the offence punishable U/s.22(b) of NDPS Act. Thereafter they were arrested and produced before jurisdictional Magistrate and were remanded to JC. On 4.7.2022 accused No.3 was arrested. He was holding a bag containing ganja in his motor cycle which was seized under a mahazar. He was carrying 10 Kgs., of ganja in the said bag. The said ganja is CCH-33 Crl.Misc.8941/2022 valued at Rs.2 lakhs. The petitioner herein is Accused No.3 in the case.

8. The learned counsel for the petitioner has argued

that no any substance ganja has been seized from the petitioner. Petitioner is having family who are depending on him. Petitioner is suffering from ill health. Petitioner is not involved in alleged crime and there is no any overtact attributed by the petitioner. Hence, he is entitled for bail.

9. The prosecution opposed the bail plea on the

ground that the offence alleged against the petitioner is punishable upto 20 years. In the event of grant of bail he is going to abscond and may hamper investigation.

10. On careful analysis of rival contentions and the

prosecution papers available on record, the investigating agency seized in all 61 Kgs., of ganja 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 at at Sl.No.55 the narcotic drug – ganja weighing 20 Kgs., is a commercial quantity. In the present case 61 Kgs., of ganja drug is seized which is a commercial quantity.

11. The NDPS Act provides deterrent punishment for

various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. At this stage, it is necessary for me to refer to the judgment of Hon'ble Apex Court in Crl. Appeal No.1043/2021 dated 22.9.2021 in the case Union of India through NCB., Lucknow Vs., Mohammed Nawaz Khan wherein the NCB., Lucknow has challenged the order of grant of bail to the accused by the Hon'ble High Court of Allahabad, Lucknow Bench. In the said case the Hon'ble Apex Court pleased to make a detail discussion on the criteria to be considered for grant of bail when the accused is prosecuted under the provisions of NDPS Act. At para­20 of the judgment the Hon'ble Apex Court pleased to note that the High Court and this court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug­ trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed. In the present case, the High Court while granting bail to the CCH-33 Crl.Misc.8941/2022 respondent adverted to two circumstances, namely (i) absence of recovery of the contraband from the possession of the respondent and (ii) the wrong name in the endorsement of translation of the statement under Section 67 of the NDPS Act. As regards to the finding of Hon'ble High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two­judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1)(b) and there was non­application of mind by the High Court. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. Further in regard to non compliance of the procedure laid U/s.42 of NDPS Act, it is held by the Hon'ble Apex Court that it is a question of fact. Further, at Para­30 the Hon'ble Apex Court pleased to make the following essential elements ought to have been considered by the Hon'ble High Court of Lucknow. (i) The respondent was traveling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co­accused; (ii) The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him; (iii) The quantity of contraband found in the vehicle is of a commercial quantity; and (iv) The contraband was concealed in the vehicle in which the respondent was traveling with the co­accused. By making a detail observation in granting the bail to the accused held to be incorrect and has set aside the impugned order. The aforesaid recent judgment of Hon'ble Apex Court clearly highlights on the aspect that what are all the circumstances to be considered and has to be evaluated by the court to consider the bail plea of the accused. 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 primafacie 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 himself 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. CCH-33 Crl.Misc.8941/2022 Further in the judgment of Hon'ble Apex Court in the case of State of MP Vs., Kajad reported in 2001 (7) SCC 673 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 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 aforesaid 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 are not guilty and that he is not likely to commit any offence while on bail. Here in the present case the petitioner along with accused No.1 was apprehended and 61 Kgs., of ganja was seized from the accused persons. The quantity of the contraband is commercial quantity. Investigation is in progress. At this stage, there are primafacie materials available against the petitioner in regard to the possession of narcotic drug. In the result, I proceed to hold that the petitioner herein have not made out any grounds to entertain his plea for bail. Accordingly, I answer point No.1 in the negative. CCH-33 Crl.Misc.8941/2022

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 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 20th day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*