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 SEPTEMBER 2022 Crl. Misc.No.8524/2022 Petitioner : Nnaji Emmanuel Lotachukwu, (accused No.1) S/o.Lotachukwu aged 23 years, Aba, Abia State, Obingwa, Nigeria, Africa. Local Address: No.6, Moinuddin nest, Telecom Layout, Hennur village, Bangalore. (By Sri DP, Adv.) V/S. Respondent : State by Pulakeshinagar Police Station (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.214/2022 of Pulakeshinagar PS., registered for the offence punishable U/Sec.22(b) of N.D.P.S. Act R/w.Sec.14 of Foreigners Act.
2. The grounds urged by the petitioner for grant of bail
are as under: That the petitioner is very innocent and law abiding citizen. He has not committed any offence much less the offence as alleged. He has 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. There is no restriction U/Sec.37 of N.D.P.S. Act for grant of bail. 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 32 grams of narcotic substance MDMA from accused Nos.1 and 2. The offence alleged against the petitioner is punishable with rigorous CCH-33 Crl.Misc.No.8524/2022 imprisonment upto 10 years and shall also be liable to fine. There is a primafacie case available against the petitioner. He is a habitual drug dealer. There is primafacie 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 his 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 who is the PSI., of
Pulakeshinagar PS., Bangalore has put the criminal law into motion. The gist of the allegation reads as here under:- On 28.06.2022 at about 2.30 pm., when the complainant was in the station he has received credible information that near a park at Richards Town, Bengaluru limits one Nigerian national is selling narcotic drugs to customers. He has immediately informed the matter to his higher officer, obtained permission to conduct raid. He along with his staff and panchas has been to the spot and found one Nigerian national near the Park along with his Car. The informant has shown the said person to the complainant. On enquiry he has revealed his name and address. On enquiry he has revealed that he is selling MDMA crystals to the students and IT BT Employees. ACP was called to the spot, he was appraised of his right to have personal search through a Gazetted Officer. In the presence of ACP personal search is conducted. 20 grams of MDMA crystals seized from accused No.1. of the house they found 32 grams of MDMA. The same was seized under mahazar. Detail report was prepared and submitted to SHO. CCH-33 Crl.Misc.No.8524/2022 Basing on the said report the case in Cr.No.214/2022 registered against him for the offence punishable U/Sec.20(b), 22(b) of N.D.P.S. Act and Sec.14 of Foreigners Act. Accused No.1 was arrested and produced before the court. During voluntary statement he has given the numbers of persons who have purchased contraband from him. The investigating officer has collected the details of the customers who have purchased contraband from the petitioner. The accused No.2 was apprehended basing on the information of phone numbers given by A.1. From accused No.2 12 grams of MDMA is seized on 30.6.2022 in front of Empire Hotel, MDM Road, Frazer Town, Bengaluru. He is put under arrest, produced before the court and remanded to JC.
8. It is vehemently argued by the learned counsel for the
petitioner that the quantum of contraband seized from the present Petitioner is not commercial quantity, hence, he is 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. The major portion of investigation is concluded. Custodial interrogation is not warranted. He is entitled for bail.
9. It is argued by the prosecution that the petitioner has
committed heinous offence and it is punishable with RI upto 20 years. The petitioner may involve in similar offence, if he is released on bail. There are primafacie material available against him.
11. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating agency seized 32 grams of MDMA under the two seizure panchanamas on different dates. The petitioner is in judicial custody since the date of his arrest i.e., from 28.06.2022. On looking to the seizure panchanama the drugs seized in all is 32 grams of MDMA. From the present petitioner, 20 grams of MDMA seized on 28.6.2022. As per specification of small and commercial quantity of narcotic drug or psychotropic CCH-33 Crl.Misc.No.8524/2022 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 a commercial quantity. In the present case 20 grams of MDMA narcotic substance is seized from the present petitioner and 12 grams from A.2, which is a commercial quantity.
12. 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 prima facie 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 while considering an appeal against an order of the High Court allowing the second bail petition of the respondent who was petitioner under the NDPS Act 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: CCH-33 Crl.Misc.No.8524/2022 "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." 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 this case, 20 grams of MDMA seized from A.1 and 12 grams of MDMA seized from the present petitioner, in all 32 grams of MDMA. At this stage, there is primafacie material available against the present petitioner that he is in possession of commercial quantity of contraband. The learned counsel for petitioner has failed to place any material before this court to show that the present petitioner is no way connected to the crime. In the result, I proceed to hold that the petitioner herein has not made out any grounds to entertain his prayer for bail. Accordingly, I answer point No.1 in the negative.
13. 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. CCH-33 Crl.Misc.No.8524/2022 [Dictated to the Judgment Writer, 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 September, 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*