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 22 nd DAY OF SEPTEMBER 2022 Crl. Misc.No.8615/2022 petitioners : 1 Mahabali Singh Kushwaha, (accused No.6 & 7) S/o.Madan Singh Kushwaha a/a 25 years, permanent R/at Madhopur Gram, Durgawati Post, Durgawati District, Bihar State- 821105.

2. Vishal Kumar Singh S/o.Vidya Sagar Singh A/a 20 years, permanent R/at Madhopur Gram, Durgawati Post, Kimoor District, Bihar State-821105

Both petitioners now R/at No.108, Room No.501, 5th Floor, Vijayadurga Men’s PG, 3rd Cross, Prashanth Layout, Whitefield, Bengaluru (By Sri.B.R., Adv.) V/S. Respondent : State of Karnataka, Marathahalli Police Station, Bengaluru. (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioners No.1 & 2 to enlarge them on bail, in Crime No.170/2022 of Marathahalli Police Station registered for the offences punishable U/Section 8(c), 22(c), 27(a), 20(ii)(B), 23(b), 23(c) of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:-

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 offence is non bailable, but is neither punishable with imprisonment for life or death sentence. The petitioners have also having got deep roots in the society and they are residents in the above cause title. The procedure contemplated under N.D.P.S. Act not followed while recovery. The quantity seized from the possession of the petitioners is less than commercial quantity. The petitioners is ready and willing to abide by any conditions imposed by this court in the event of grant of bail. They are 3 CCH-33 Crl.Misc.8615/2022 ready to offer sureties for their due appearance before this court. Hence, sought to grant bail.

3. The prosecution while opposing the bail petition

contended that at the instance of accused No.6 MDMA ecstasy pills 90 in Nos., weighing 38 grams, Charas 70 grams and cocaine 80 grams are seized. At the instance of accused No.7 – 20 Kgs., of ganja, 200 grams of MDMA crystals, 50 LSD papers weighing 1.27 grams and 2 Kgs., 25 grams of hash oil are seized which are commercial quantity. There are sufficient material available against the petitioners, 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. In the event of his release he may tamper with the prosecution witnesses. Incriminatory articles were seized from his custody. They may involve themselves in similar offences. Investigating agency by complying the provisions prevailed under the act has seized the contraband from the petitioners. The petitioners 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 petitioners.

4. Heard learned counsel for the petitioners and the

prosecution.

5. The points that arise for my consideration are as here

under:

1. Whether petitioners have 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 of Marathahalli PS., has put

the criminal law into motion. The gist of the allegation reads as here under:- On 28.7.2022 at 4.45 pm., when the complainant was on patrolling duty he has received credible information that three persons are engaged in drug trafficking through courier and 5 CCH-33 Crl.Misc.8615/2022 postal services and stored narcotic drug in their room. They use porter and dunzo apps delivery boys to transport the same by wrapping them as gift parcels to college students and IT/BT employees. He has informed the Higher Officer and obtained permission to conduct raid. He along with his staff and panchas went to the room and conducted raid and apprehended 3 persons. On enquiry they have revealed their names and addresses. During house search of accused 1 to 3 he has seized 243.03 Gram MDMA, 2KG 25 Gram Hashish Oil, 21 KG 200 Gram Ganja, 70 Gram Charas, 18 Gram Cocaine. Accused Nos.4 to 7 have absconded from the spot. It is revealed on interrogation of accused Nos.1 to 3 that accused No.4 and 5 have supplied MDMA ecstasy pills, LSD strips and ganja to accused Nos.6 and 7. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared and submitted before SHO which is the basis to register the case against the accused in Cr.No.170/2022 of Marathahali PS registered for the offence punishable U/Sec.8(c), 22(c), 27(a), 20(ii)(B), 23(b), 23(c) of N.D.P.S. Act. of NDPS Act against accused Nos.1 to 7. Thereafter accused Nos.1 and 3 were arrested and produced before jurisdictional Magistrate and were remanded to JC.

8. Basing on the voluntary statement of accused Nos.1

to 3, accused Nos.6 & 7 were apprehended. Accused Nos.1 to 3 have shown the residence of accused Nos.6 and 7. accused Nos.6 and 7 were residing at Whitefield, Prashanth Extension and they are the natives of Bihar. Accused Nos.6 and 7 have produced the contraband which was kept in their house. at the instance of accused No.6 MDMA ecstasy pills 90 in Nos., weighing 38 grams, Charas 70 grams and cocaine 80 grams are seized. At the instance of accused No.7 – 20 Kgs., of ganja, 200 grams of MDMA crystals, 50 LSD papers weighing 1.27 grams and 2 Kgs., 25 grams of hash oil are seized under a detail mahazar. Their voluntary statements came to be recorded. They were arrested and produced before the judicial custody and remanded to judicial custody. The present petitioners are arrayed as accused No.6 and 7 in the case.

9. On looking to the prosecution papers the quantum of

narcotic substance seized at the instance of accused No.6 MDMA ecstasy pills 90 in Nos., weighing 38 grams, Charas 70 7 CCH-33 Crl.Misc.8615/2022 grams and cocaine 80 grams are seized. At the instance of accused No.7 – 20 Kgs., of ganja, 200 grams of MDMA crystals, 50 LSD papers weighing 1.27 grams and 2 Kgs., 25 grams of hash oil are seized. MDMA, LSD and hashish oil are commercial quantity. 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 commercial quantity. In the present case 238 grams is seized which is commercial quantity. At Sl.No.23­ narcotic drug Hashish oil 1 Kg., is commercial quantity. In the present case 2 Kgs., 25 grams is seized. Likewise, At Sl.No.133 narcotic drug LSD – 0.1 gram is commercial quantity. In the present case 1.27 grams of LSD is seized which is commercial quantity. Thus, the above said contraband seized from the possession of the accused persons are commercial quantity.

10. 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 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 9 CCH-33 Crl.Misc.8615/2022 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. 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.

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 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 : 11 CCH-33 Crl.Misc.8615/2022 "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 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 petitioner is not guilty and that he is not likely to commit any offence while on bail. In the present case the present petitioners were found in possession of different types of contrabands and the contraband found in their possession is commercial quantity. When the house of present petitioners was raided the contraband was seized at their instance. At this stage, the seizure of contraband from the house of petitioners prima facie indicates that they are involved in drug trafficking. On the other hand, the petitioners have failed to place any material before this court at this stage, that they are no way connected to the seized contraband. In the result, I proceed to hold that the petitioner herein has not made out any grounds to entertain his plea for bail. Accordingly, I answer point No.1 in the negative. 13 CCH-33 Crl.Misc.8615/2022

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

ORDER

The petition filed by the petitioners No.1 to 3 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 22nd day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.