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 27 th DAY OF JULY 2022 Crl. Misc.No.7110/2022 petitioners : 1.Kanada1. S, S/o.late (accused No.6 & 7) Sannashetty, 48 years, No.35, Narayana's rented house, I Cross, Yelenahalli, Bengaluru 560 081.

2. Nandish S, S/o.Srinivas, 27 years, No.923, 18th Cross, Near Amrutha Bakery, D block, JP Nagar, Mysore city district. (By Sri.Mallesha V., Adv.

V/S. Respondent : State by Begur PS. (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioners to enlarge them on bail, in Cr.No.162/2022 of Begur PS., registered for the offence punishable U/Sec.20(B) of NDPS Act.

2. The grounds urged by the petitioners for grant of bail

are as under: That the petitioners are innocent and law abiding citizens. They have not committed any offence much less the offence as alleged. They have been falsely implicated by the respondent in this case. Though the alleged offences are non bailable, but is neither punishable with imprisonment for life or death sentence. The procedure contemplated under N.D.P.S. Act not followed while recovery. The petitioners are permanent residents of the address shown in the cause title. The petitioners are ready and willing to abide by any conditions imposed by this court in the event of grant of bail. They are ready to offer surety for their 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 48 Kgs., 930 grams of ganja. The offences alleged against the petitioners are punishable with rigorous imprisonment for a term upto 10 years and shall CCH-33 Crl.Misc.No.07/2022 also be liable to fine. There is a primafacie case available against the petitioners. They are habitual drug dealers. There is primafacie case made out against petitioners. If petitioners are released on bail, they will continue the profession of narcotic drug selling, and they may abscond and tamper evidence of the prosecution. Hence, sought to reject the bail plea of petitioners.

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 petitioners have made out sufficient grounds to enlarge them 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 complainant PSI., has received

information that on 17.6.2022 that there is sale of ganja by an unknown person in the vacant space adjacent to site No.95, AECS layout, Basapura main road. On receipt of the information he has made a detail report and registered a suo- moto case in Cr.No.162/2022 of Beguru PS for the offence punishable U/Sec.20(B) of NDPS Act against unknown person. Thereafter, as provided under the act he has sought permission of higher officer to conduct raid. After taking permission he along with panchas and staff had been to the spot and found the suspected person. On enquiry he has revealed his name and address. On personal search of the said person 1 Kg., 190 grams of ganja was found. The said ganja was seized under detail mahazar. The accused No.1 during interrogation has stated that he has purchased the ganja from one Akshay Bindani and Tapan Kumar of Odissa State. He is selling ganja to the public. The said ganja has been noted in PF No.82/2022. 20 plastic covers found in the possession of CCH-33 Crl.Misc.No.07/2022 the accused No.1 was also seized. With a detail report, he is produced before the court and remanded to judicial custody. Basing on the statement of the accused No.1, accused Nos.2 and 3 were apprehended by the investigating agency. They were apprehended on 21.6.2022 at Subashnagar, near Nice road bridge, Basapura main road. The investigation officer has received the information that they are going to arrive to the same spot with contraband. He has constituted a raiding team, visited the spot and apprehended accused Nos.2 and 3. On conducting personal search of accused Nos.2 and 3, he has found 3 Kgs., 530 grams of ganja in their possession. The said ganja is seized under detail panchanama. They were arrested and produced before jurisdictional Magistrate and were remanded to judicial custody. Basing on the voluntary statement of accused Nos.2 and 3 the investigating agency have apprehended accused Nos.5 to 8 on 26.6.2022 at Koodlu gate sub way. During interrogation accused Nos.2 and 3 revealed that accused No.4 is going to arrive at Koodlu gate along with the contraband. Basing on the said information the Investigation officer was waiting for the arrival of accused No.4 at Koodlu gate on 26.6.2022 in the evening. When accused No.4 has arrived to the spot he was apprehended and from his conscious possession 3 Kgs., of ganja was seized. In the voluntary statement of accused Nos.2 and 3 they have revealed that they are acquainted with accused Nos.5 to 8. They are from Mysore and Kollegala. They were also supplying ganja to them. The said persons are going to arrive at Basava Circle, Beguru Koppa road, Hulimavu to sell the ganja. The investigating officer on ascertaining the said information has mounted surveillance in the said area. White Suzuki Ciyaz Car bearing KA 12 Z 6644 arrived to the spot. In the said car accused Nos.5 to 8 were found. On thorough search of the vehicle huge quantum of ganja is found. The total quantum of ganja seized from the conscious possession of accused Nos.5 to 8 is 36 Kgs., 854 grams which was found stored in the vehicle. The said accused persons were arrested and were brought to the police station. Their statements came to be recorded. Accused Nos.5 to 8 were taken to police custody. After further investigation in the matter they were produced to court and remanded to judicial CCH-33 Crl.Misc.No.07/2022 custody. The total quantum of ganja seized in this case is 48 Kgs., 930 grams.

8. It is vehemently argued by the learned counsel for the

petitioner that the quantum of contraband seized from the present Petitioners are not commercial quantity, hence, they are entitled for bail. Search and seizure are vitiated by inherent procedural impropriety. 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. He major portion of investigation is concluded. Custodial interrogation is not warranted. They are entitled for bail.

9. It is argued by the prosecution that the petitioners

have committed heinous offence and it is punishable with RI upto 20 years. The petitioners may involve in similar offence, if they are released on bail. There are prima­facie material available against them.

10. On careful analysis of rival contentions and the

prosecution papers available on record. The investigating agency seized 48 Kgs., 930 grams 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 Sl.No.55 the narcotic drug ganja seized is 36 Kgs., 854 grams from the present petitioners is a commercial quantity.

12. 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 CCH-33 Crl.Misc.No.07/2022 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 drug­trafficking 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.

13. 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; CCH-33 Crl.Misc.No.07/2022 (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 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.

14. On looking to the prosecution papers the quantum

of narcotic substance seized in this case is 48 Kgs., 930 grams. The present petitioner were apprehended by the investigating agency with huge quantum of ganja to the tune of 36 Kgs., 854 grams which is a commercial quantity. 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 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 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 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). CCH-33 Crl.Misc.No.07/2022 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 petitioners are not guilty of the offences with which they are charged and further that they are 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 petitioners are not guilty of such offence and that they are not likely to commit any offence while on bail alone will entitle them to a bail. In the present case, the petitioners 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 petitioners or not. At this juncture, we cannot say that the petitioners are 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 they are 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 petitioners 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 petitioners are not guilty and that they are not likely to commit any offence while on bail. Here in the present case the petitioners were apprehended and 36 Kgs., 854 grams of ganja seized from them. The quantity of the contraband is commercial quantity. At this stage, there are primafacie material available against the petitioners in regard to the possession of narcotic drug. In the result, I proceed to hold that the petitioners herein have CCH-33 Crl.Misc.No.07/2022 not made out any grounds to entertain their plea for bail. Accordingly, I answer point No.1 in the negative.

15. Point No.2:- In the result, I proceed to pass

following:

ORDER

The petition filed by the petitioners 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 27th day of July 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*