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 JULY 2022 Crl. Misc.No.6837/2022 petitioner : Murthy.B, S/o Late babu, aged about (accused No.6) 26 years, R/at No. 567, 13th cross, 7th main, near Passport Office, Rajendra Nagar, Kormangala, Bengaluru South, Bengaluru (By Sri.HG.G.M., Adv.) V/S. Respondent : State of Karnataka by Koramangala PS (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 Cr.No.53/2022 for the offences punishable U/Sec.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 is not committed any offence much less the offence as alleged. He is 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 procedure contemplated under N.D.P.S. Act not followed while recovery. The quantity seized from the possession of the petitioner is less than commercial quantity. 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 102.2 Kgs., of ganja from A1 & A2 which is a commercial quantity. Further contended that the accused persons were possessing a long in the back side of the car. There are sufficient material available against the petitioner, and the said offences are punishable with rigorous imprisonment for a term which shall not be less than 10 years CCH-33 Crl.Misc.6837/2022 which may extend to 20 years and shall also be liable to fine. The investigation is pending. In the event of their release they may tamper with the prosecution witnesses. Incriminatory articles were seized from their custody. 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. With these specific pleas sought to reject the bail plea of the petitioner.

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

REASONS

7. POINT NO.1:- The PSI of Koramangala PS., has put

the criminal law into motion. The gist of the allegation reads as here under:- On 16.03.2022 at about 12:00 pm., when the complainant was on patrolling duty at about 12.00 noon, the informant met him and informed that on Tuesday and Wednesdays one person used to arrive at I Block, Bellary colony, Koramangala, in a vacant space to sell the contraband around 4.00 pm. After he leaves the place the informant has smelt the leaves which were fallen on the ground and confirmed that it is ganja. On that day also he would arrive at 4.00 pm., to sell the ganja and he aged about 25-30 years. On confirming about the information he has registered a case in Cr.No.53/2022 for the offence punishable U/s.20(B) of NDPS Act against unknown person. He has called the panchas to the station served notices upon them and requested them to be present at the time of raid. He along with investigation tools, staff and panchas has been to the spot around 3.50 pm., they CCH-33 Crl.Misc.6837/2022 have mounted surveillance at the spot. At about 4.10 pm., the said unknown person came in a rented auto, taken out his travel bag and came to the vacant spot. He was waiting for the arrival of customers. At that time, he was apprehended. On enquiry he revealed his name as Ramesh @ Bulli S/o.Venkatesha. When he was enquired about the contents of the bag and the reason for his arrival to the spot, he has stated that he is selling ganja to the public and he is carrying the same in his bag. He was apprised of his right to have personal search through a gazetted officer. During search of the bag 2 Kgs., 100 grams of ganja was found. Another cover was found containing same quantity of ganja. It was seized and sealed. 20 plastic covers were also seized. Accused No.1 was arrested brought to police station along with the seized articles. During the voluntary statement he has revealed that he has purchased ganja from one Bullet Shivaram for lesser prise. He has purchased in all 30 Kgs., of ganja and kept the same in his house at Begur. At his instance, 26 Kgs., 500 grams of ganja was recovered in his house situated at 5th Main, door No.1, 4th cross, Akshaynagar, Bengaluru. On 19.3.2022 accused No.2 Shivaramu was apprehended at 3rd block, Koramangala, 7B main road, in a vacant space, there he came in Suzuki Axis Bike. In the bike there was 2 kg., of ganja. His voluntary statement was recorded. He has stated that he has brought ganja to sell it to the public. He was arrested and taken to police custody. During voluntary statement he has revealed that he was selling ganja to one Murthy, Manjunatha, Abilasha. They have demanded more ganja from him. He has contacted one Shanmuga. The said Shanmuga has brought 50 Kgs., of ganja and gave it to Murthy, Manjunatha and Abilasha. He has also revealed that he has kept ganja in his farm house at Pushpaura village, Anoor Taluk, Chamarajnagar district there he has stored 16 Kgs., 500 grams of ganja. The said ganja was seized under panchanama dated 22.3.2022. As per the voluntary statement of accused No.2, accused Nos.6, 7 and 8 were apprehended on 25.3.2022 by the investigating agency. They have revealed that they have purchased ganja from Shanmuka of Pushpapura. They further revealed that they are selling ganja to the college students and public. As per the CCH-33 Crl.Misc.6837/2022 voluntary statement of accused No.6, 17 Kgs., 100 grams of ganja was seized at 8th block, Koramangala, behind Indira Canteen near by an old vehicle. As per the statement of accused No.7, at 8th block, Marappa garden in a dilapidated house 18 Kgs., of ganja was seized. Further as per the statement of accused No.8 at 4th block, Koramangala near Life style drainage area 18 Kgs., 100 grams of ganja was seized. After the seizure of ganja, accused Nos.2 to 6, 7 & 8 were produced before the court and were remanded to JC. It is further stated in the investigating papers that accused No.2 is also prosecuted in another case of Kollegala police for drug trafficking. A6 to 8 are prosecuted in different cases of Madiwala, Kormangala and Adugodi PS.

8. It is argued by the learned counsel for petitioner that

he is planted in the case by the complainant police. He is unaware of seized drug. The seized article is not commercial quantity. The mandatory provisions of Sec.41, 42, 50, 52 and 47 of the Act are not complied. He is permanent resident of the address given in the cause title. In the event of grant of bail he is ready to abide by the conditions which are being imposed by this court.

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, at the instance of present petitioner who is shown as accused No.6 and who is a drug peddler in the case, the investigating officer has seized 17 Kgs., 100 grams of ganja was seized at 8th block, Koramangala, behind Indira Canteen near by an old vehicle. He is prosecuted in another NDPS case having criminal antecedents. This court while considering the bail plea of petitioner, has to look into the nature gravity of allegations leveled against the present petitioner. The quantum of ganja seized in the case cannot be segregated pertaining to each one of the accused. As per the prosecution papers, accused Nos.1, 2, 6 to 8 are doing drug peddling and as per the say of accused No.1, accused Nos.6 to CCH-33 Crl.Misc.6837/2022 8 were apprehended and huge quantum of contraband is seized. Therefore, total quantity of contraband seized in the case has to be considered. 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 drug­ganja 1000 grams is small quantity and 20 Kgs., is commercial quantity. In this case the quantum of ganja seized is 102 Kgs., which is a commercial quantity.

11. On looking to the prosecution papers the quantum

of narcotic substance seized in the case at the instance of A1, 2, 6 to 8 is 102.2 Kgs., of Ganja. The NDPS Act provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances.

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 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 CCH-33 Crl.Misc.6837/2022 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; (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. 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 CCH-33 Crl.Misc.6837/2022 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). 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." CCH-33 Crl.Misc.6837/2022 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 are not guilty and that he is not likely to commit any offence while on bail. Here in the present case the accused No.1 was apprehended and at his instance accused Nos.6 to 8 were apprehended. The total quantum of ganja seized from accused Nos.1, 2, 6 to 8 is 102.2 Kgs. The present petitioner is accused No.6. He is having criminal antecedents as per the report of investigating agency. The quantity of the contraband is commercial quantity. At this stage, there is primafacie material available against the petitioner in regard to the possession of narcotic drug and doing drug peddling. 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.

14. 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 July 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.