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 DECEMBER 2022 Crl. Misc.No.12150/2022 petitioner : Mohammed Oruvil, S/o.Abdukka (accused Nos.3) Kutty Oruvil, a/a 32 years, R/at Ananthavoor (Post), Tirur Taluk, Malappuram District, Kerala676551 (By Sri.Binu.M… Adv. V/S. Respondent : State by Ashoknagar PS. (By learned 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 Cr.No.288/2022 of Ashoknagar Police Station registered for the offences punishable U/Section 8(c), 20(ii) (B) and 22(c) of NDPS Act .

2. The grounds urged by the petitioner for grant of bail is

as under: That the petitioner is innocent and law abiding citizens. He has not committed any offence much less the offence as alleged. He is 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. Accused No.3 is already granted bail by this court in Crl.Misc.No.11201/2022 dt.29.11.2022. Petitioner hails from respectable family. 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 65 grams of MDMA, 1 KG 100 grams of Ganja from the accused persons. The offences CCH-33 Crl.Misc.No.12150/2022 alleged against the petitioner is punishable with rigorous imprisonment for a term upto 20 years and shall also be liable to fine. There is a prima-facie case available against the petitioner. He is habitual drug dealers. There is prima-facie case made out against petitioner. If petitioner is released on bail, he will continue the profession of narcotic drug selling, and he may abscond and tamper evidence of the prosecution. Hence, sought to reject the bail plea of 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 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 of Ashoknagar PS., has put the

criminal law into motion. The gist of the allegation reads as here under:- On 3.10.2022 at 21.10 hours when the complainant was discharging duties in the police station he has received credible information that at Residency Road, near Opera Circle, three persons would come to sell contraband MDMA in their Honda City White car bearing No.KL 44 F 4621 around 21.45 hours to 22.00 hours. The complainant immediately informed the matter to ACP Cubbon Park obtained permission to conduct raid. He has registered a case in Cr.No.288/22 for the offences punishable U/s.8(c), 20(ii) (B) and 22(c) of NDPS Act .Thereafter he has proceeded to the spot along with the staff and panchas and had been to the spot at about 22.00 hours. There the complainant has seen three persons sitting in a Honda City Car bearing No.KL 44 F 4621. On enquiry the said persons had revealed their names and addresses as Md.Haroon, Md. Oruvil and Md.Ilyas. They are the residents of Mallapuram district, Kerala. On enquiry they have revealed CCH-33 Crl.Misc.No.12150/2022 that they have stored contraband MDMA in the dash board of the car. In the presence of gazetted officer ACP their personal search is conducted. 1 Kg., 100 grams of ganja 5 grams of MDMA was seized from their conscious possession. On further probing they have revealed that they have purchased contraband from one Abdurabu, Mohamed Musa and Sudan Khrtoum Bhaye they are the citizens of Yemen and Sudan and are selling to the public. They have also stated that the said accused persons were having contraband in their house. Basing on the statement of accused No.1 to 3 complainant has assigned the staff to apprehend the said persons. On 5.10.2022 the said persons were apprehended by the complainant and from their conscious possession i.e., accused No.5-20 grams of MDMA, accused No.6 – 20 grams of MDMA and from A7 – 20 grams of MDMA crystals were seized. The contraband was seized under a detail mahazar. Accused Nos.5 to 7 were arrested on 5.10.2022 and they were produced before the court and remanded to judicial custody. The present petitioner is accused No.2 in the case.

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

petitioner that while conducted the field test the agent used to determine the product as MDMA is not stated in the investigation papers. The sample has to be given to the court. It is a synthetic drug. MDMA is in the form of crystal, powder, is not followed. The test memo is not produced. The search and seizure is illegal. Arrest made is illegal.

9. On careful analysis of rival contentions and the

prosecution papers available on record. The investigating agency seized 5 grams of MDMA and 1 Kg 100 grams of Ganja from the conscious possession of present petitioner and accused No.1 and 3. Basing on the statement of accused Nos.1 to 3, the Accused No.5 to 7 were apprehended. The quantum of MDMA seized from accused Nos.5 to 7 is 40 grams. 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 0.5 grams is small quantity and 10 grams is commercial quantity. The CCH-33 Crl.Misc.No.12150/2022 contraband seized from the present petitioner and accused No.1 & 3 is 5 grams of MDMA which is intermediary in quantity and in this case the ganja seized is 1 Kg 100 grams. The quantum of contraband seized from the Accused 1 and 3 is intermediary quantity. The allegation against present petitioner and accused nos.1 and 3 is they have purchased contraband from 5 to 7. At the instance of accused No.5 to 7 contraband seized is commercial quantity. The contraband which is seized from A5 to A7 is no way connected to the present petitioner. The accused Nos.5 to 7 were arrested on 5.10.2022 after two days of apprehension of accused Nos.1 to 3 herein. The quantum of contraband seized from the present petitioner and accused Nos.1 and 3 is intermediary in nature. As per the decision of Hon'ble Apex Court reported in 2018 11 SCC 488 Birbal Prasad Vs., State of Bihar wherein it is held that: Ss.37 and 20 – Bail – grant of – non commercial quantity – quantity involved being only 14 Kgs., of ganja, which is a non commercial quantity appellant accused not involved in any other case – in above circumstances, held, appellant should be released on bail, pending trial – hence, directions issued to release appellant on bail, on certain conditions. The said case law aptly applies to the case on hand in holding that the contraband seized in the case on hand is intermediate quantity and it is not commercial quantity. In the said circumstances, as per the observations of Hon'ble Apex Court the bail plea of accused to be considered.

10. Here in this case the drugs seized by the investigating

agency from the present petitioner and accused Nos.1 and 3 is to the tune of 5 grams of MDMA and 1 Kg., 100 grams of ganja are intermediate quantity. When the quantity is less than commercial quantity, rigors of Sec.37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statues normal, unless the prosecution points towards exceptional circumstances.

11. The major portion of investigation in the case is

concluded as the incriminatory article is already seized from accused. The offence alleged against the petitioner is not CCH-33 Crl.Misc.No.12150/2022 punishable with death or imprisonment for life. Further custodial interrogation is not warranted. His Voluntary statement is already recorded. As per the information provided by the petitioner he is permanently residing in the address shown in the cause title. The apprehension of the prosecution that he may abscond and may protract the trial could be compensated by imposing stringent conditions. In the result, I answer the point for consideration in the affirmative.

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 allowed. The petitioner is enlarged on bail on executing personal bond for a sum of Rs.1,00,000/- with two sureties for the like sum with following conditions.

1. The petitioner shall give attendance before the concerned I.O., once in a month i.e., preferably on first Monday of every month in between 10.00 am., to 2.00 pm., till filing of charge sheet or further orders whichever is earlier.

2. He shall not leave the jurisdiction of this court without prior permission.

3. He shall not tamper the witness or abscond.

4. He shall co-operate with I.O for investigation.

5. He shall not commit similar offence or any offence while on bail.

6. He shall furnish his photo ID proof and local address proof document before the court and photo ID proof of his sureties.

7. He shall appear before the court on all hearing dates.

8. Breach of any of the conditions by the petitioner would entail cancellation of bail.

[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 December 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.