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 30 th DAY OF NOVEMBER 2022 Crl.Misc.No.11486/2022 Petitioner : Muskan Banu, D/o.Fayaz Ahmed, (accused No.2) a/a. years, R/at No.22, 3rd Cross, Near Kuba Masjid, Near Ashok Pillar, Yarabnagar, Bengaluru. (By Sri. M.V.Murthy., Adv.) V/S. Respondent : State by Parappana Agrahara 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 her on bail, in Cr.No.409/2022 of Parappana Agrahara PS., registered for the offence punishable U/Sec.8(c), 22(B) of NDPS Act and Sec 42 of Karnataka Prison Amendment Act and Sec 424 of IPC.
2. The grounds urged by the petitioner for grant of bail
are as under: That the petitioner is very innocent and law abiding citizen. She has not committed any offence much less the offence as alleged. She has no knowledge of alleged crime and falsely implanted at the instance of extraneous elements. The mandatory provisions U/s.50 of NDPS Act has not been complied. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. The petitioner is ready and willing to abide by any conditions imposed by this court in the event of grant of bail. she is ready to offer surety for her due appearance before this court. she has no bad antecedents. she is the sole bread earner of her family. Hence, sought to grant bail.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 7.49 grams of MDMA from the possession of the accused. The petitioner is found to be in possession of narcotic substance. A detailed mahazar is drawn in the spot. Personal search is conducted. The offence CCH-33 Crl.Misc.No.11486/2022 alleged against the petitioner is punishable with rigorous imprisonment for a term which shall extend upto 10 years. There is a primafacie case available against the petitioner. she is an habitual drug dealer. In the event of grant of bail, she would abscond and may hamper the investigation. 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 her 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:- Sri.Dr.Mallikarjun, Chief
Superintendent of Central Prison, Bengaluru, Parappana Agarahara village who is the complainant in this case before the Parappana Agrahara PS. The contents of the report is as here under:- On 19/11/2022 at about 4.30 PM a lady by name Muskan Banu D/o.Fayaz had been to the Jail premises, took “Visitor pass Slip” to meet the accused Naveen.R @ Mamu in UTP No.609/2022. When the said Muskan Banu was subjected to scanning and checking by Smt.Lakshmi (WPS- 1678) she had concealed white coloured drug in her garments in a thread she was worn. The said article and the contraband was seized under the mahazar. The contraband which was concealed in the thread weighed around 7.49 grams of MDMA. It was seized under a mahazar. The said official who has checked the accused and seized the contraband has submitted a detail report before the Jail Superintendent, who in turn has presented the complaint before SHO., Parappana Agrahara PS., against one Naveen.R @ Mama who is the prisoner, against the present petitioner which is the basis to register the case in Cr.No.409/2022 for the offences punishable U/Sec.8(c),22(B) Sec.42 of Karnataka Prisons (Amendment) CCH-33 Crl.Misc.No.11486/2022 Act, Sec.424 of IPC. The accused was arrested, produced before the learned Magistrate and was remanded to judicial custody. The present petitioner is accused No.2 in the case.
8. It is argued by the learned counsel for petitioner that
she is planted in the case by the complainant police she 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. she is permanent resident of the address given in the cause title. In the event of grant of bail she 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 10 years. In the event of grant of bail she is going to abscond and may hamper investigation.
10. On careful analysis of rival contentions and the
prosecution papers available on record the investigating agency seized 7.49 grams of MDMA under the seizure panchanama. The petitioner is in judicial custody since the date of her arrest i.e., from 20/11/2022. On looking to the seizure panchanama the drugs seized is weighing 7.49 grams of MDMA. 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.17.49 5(E) dated 19.10.2001 at Sl.No.134 the narcotic drugMDMA 0.5 grams is small quantity and 10 grams is commercial quantity. In this case the quantum of MDMA seized is 7.49 grams of which is an intermediate quantity. 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. CCH-33 Crl.Misc.No.11486/2022 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.
11. Here in this case the drugs seized by the
investigating agency to the tune of 7.49 grams of MDMA which is an 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.
12. The major portion of investigation in the case is
concluded as the incriminatory article is already seized. The offence alleged against the petitioner is not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. Voluntary statement of accused is already recorded. As per the information provided by the petitioner she is permanently residing in the address shown in the cause title. The apprehension of the prosecution that she 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.
13. Point No.2:- In the result, I proceed to pass
following: CCH-33 Crl.Misc.No.11486/2022
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. She shall not leave the jurisdiction of this court without prior permission.
3. She shall not tamper the witness or abscond.
4. She shall co-operate with I.O for investigation.
5. She shall not commit similar offence or any offence while on bail.
6. She shall furnish her photo ID proof and local address proof document before the court and photo ID proof of her sureties.
7. She shall appear before the court on all dates of hearing.
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 computerized by her, corrected, signed and then pronounced by me in Open Court on this the 30th DAY OF NOVEMBER 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*