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.8080/2022 Petitioner : Jasbir singh, S/o/Gurber Singh, 32 (accused No.2) years, No.S-57, 20th Street, 4th Main road, Anna Nagar, Chennai 600 040. (By Sri SK., Adv.) V/S. Respondent : State by NCB Police (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 NCB..No,48/1/2/2022 of NCB., BZU., (Spl.C.C.1685/2022) registered for the offences punishable U/Section 8(c), 21(B), 22(C), 27, 27A, 28 and 29 of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:-
the petitioner has filed the successive petition seeking bail on medical grounds. Further the investigation in the case is concluded and final report is submitted. Custodial interrogation of petitioner is not warranted. He is doing business of spare parts along with his father Gurbirsingh at Chennai. The NCB officials have shown his arrest at Bangalore office. He is arrested while he was travelling from Ooty to Chennai via Karnataka and at that time he was arrested. He is not in possession of any narcotic substance. What is the material seized in the case is not established. The cocaine seized from the present petitioner is 42 grams which is not commercial quantity. Initially the bail petition filed by him came to be rejected. 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 seeking bail on health grounds. He has produced the documents for undergoing surgery at Victoria Hospital. He has undergone surgery on 26.5.2022 CCH-33 Crl.Misc.8080/2022 and discharged from the hospital on 30.5.2022. he has also urged that his mother is suffering from ill-health. His wife has sustained burn injuries in an accident and to take care of his mother and wife he seeks bail. 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 1 Kg., 100 grams of ganja, LSD 21 strips weighing 0.40 grams and 41 grams of MDMA crystals. LSD and MDMA are commercial quantity. The petitioner and other accused were apprehended by the NCB officials with commercial quantum of contraband. Accused No.1 was handing over the narcotics to the petitioner and his associates at that time they were apprehended by the IO., NCB., and his team. The investigation in the case is completed and the final report is filed against the petitioner and other accused. The allegation leveled against the accused is serious in nature and it is 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 grounds urged by the petitioner that he has under gone medical treatment at Victoria hospital indicates that he has already under gone treatment and now he is comfortable and he does not require further treatment. Further, the wife of the petitioner has undergone accidental burns in the year 2021 prior to the registration of the case. She has sustained burn injuries and now she has recovered. Yet another contention raised by the petitioner is that his mother's ill-health. Mother is aged 72 years. She is having age related issues. When his wife has under gone burn injuries the petitioner was not in jail. He is trying to take advantage of his wife's past health issue. The grounds urged by the petitioner seeking bail on health grounds is untenable. Hence, sought to reject the bail. 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 petitioner. The petitioner herein would sell the drugs to the younger generation which may ruin the career of younger generation. CCH-33 Crl.Misc.8080/2022 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 medical 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 IO of NCB Bangalore., has put
the criminal law into motion. The gist of the allegation reads as here under:- On 17.01.2022 at around 6:00 Pm IO NCB received Credible information that one Nigerian national by name Michael, around 30 years old, staying in smondo 3.0 Apartments, Smondoville Road, Neotown, Maragondanahalli, Bommasandra, Bengaluru will be handing over cocaine and MDMA drugs near Lemon Tree Hotel, Electronic City, Bengaluru, to one person by name Jasbir Singh and his friends namely Sudhakar and Praveen coming from Chennai in white Scorpio vehicle bearing registration No. TN-07-CC 1444, at around 2000 Hrs. He has informed the matter to his superior and on informing about submission of report U/Sec 42 of the NDPS Act to the higher Officer later and to avoid concealment of evidence, as per the direction of Assistant Director he has followed the suspect along with the team. When the NCB team mounted surveillance at Lemon Tree Hotel a suspected African person came their in an auto and around 8.30 p.m., 4 persons came to bus stop and waiting in Scorpio Car. The African persons had started taking out some packets from the bag. At that time complainant NCB intercepted. Thereafter, the contraband as referred in detail in the remand report is recovered. A detail mahazar is drawn. After issuing notice to the accused persons their statements were recorded. Incriminating substance was seized under detail mahazar. The accused were arrested and a detail report is submitted. Basing on the report, a case in NCB.Cr.No,48/1/02//2022 CCH-33 Crl.Misc.8080/2022 of BZU., registered for the offences punishable U/Sec. 21(B), 22(C), 27,27A,28,29 of N.D.P.S. Act. The petitioner is accused No.2 in the case.
8. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating agency seized 1 Kg., 100 grams of ganja, 21 strips of LSD weighing 0.40 grams, 41 grams of MDMA 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 Sl.No.134 the narcotic drug MDMA weighing 10 grams is a commercial quantity. In the present case 41 grams of MDMA narcotic substance is seized which is a commercial quantity. Likewise, at Sl.No.133 the narcotic drug – LSD weighing 0.002 grams is small quantity and 0.1 gram is a commercial quantity. In the present case 0.40 grams of LSD narcotic substance seized also a commercial quantity.
9. The petitioner urged that he has under gone
surgery. As could be seen from the documents produced by the petitioner he has under gone surgery and after recovery he is discharged from Victoria hospital. Further there is no report of medical officer to show that he is yet to take further treatment. He has refer to the hospital reports of his wife who has suffered burn injuries in the year 2021 i.e., prior to registration of the case. He has also referred to the medical report of his mother who is aged and suffering from health issues. On looking to the medical records there is no serious health issues in respect of his wife and mother. Eye treatment report of his mother is a cataract procedure i.e., is a normal treatment. The medical reports of his wife pertains to prior to the registration of the case. Thus, the prayer of petitioner seeking grant of bail on medical grounds is without any basis. The allegation against the petitioner is when he was collecting commercial quantity of contraband, he was apprehended by the NCB., Io. The final report filed against him indicates his involvement in the crime. In respect of the offences punishable under NDPS Act there is deterrent punishment as it effects the society the Hon'ble Apex Court has observes that liberal approach in granting bail in cases of offenders who are involved in illicit drug CCH-33 Crl.Misc.8080/2022 trafficking is uncalled for. Let me refer to the 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 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. Further in 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 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 non application 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. CCH-33 Crl.Misc.8080/2022 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 is 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. 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 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 CCH-33 Crl.Misc.8080/2022 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 the instant case the petitioner has failed to present plausible reasons to grant bail on health grounds. The petitioner after surgery is in good health discharged from the hospital. On looking to the medical report of his mother and wife there is no serious issues. The petitioner is also not having any health issues as on the date of this petition. Therefore, on looking to the serious nature of allegations levelled against the petitioner, I feel the present petition seeking bail on medical grounds is without sufficient material. In the result, I proceed to hold the point for consideration in the negative.
10. 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 17th day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*