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 8 th DAY OF AUGUST 2022 Crl.Misc.No.7522/2022 Petitioner : Prathik Thiwari, S/o.Kishan Thiwari, (accused No.1) 23 years, No.192, Sai PG., Hoodi Circle, white field road, Bangalore 560 078. Permanent address: R/at.116/389, Namak Factory Road, Ravathpura, Kanpura district, UP 208019. (By Sri M.A., Adv.) V/S. Respondent : State by Basavanagudi 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.120/2022 of Basavanagudi PS., registered for the offence punishable U/Sec.8(c) & 20(B) of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under: That the petitioner is absolutely innocent of the alleged offences and have got valid and tenable defense. There is no eye-witnesses to say that the accused was in actual physical possession of the ganja. The petitioner hails from respectable family and has no bad antecedents or he is a previous convict. The petitioner is in judicial custody since the date of his arrest and he is no more required as the investigation is already completed. 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. He has no bad antecedents. He is the sole bread earner of his family. Hence, sought to grant bail.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 9 Kgs., 300 grams of ganja from the possession of the accused persons. The accused is found to be in possession of narcotic substance. A detailed mahazar is drawn in the spot. Personal search is conducted. CCH-33 Crl.Misc.No.7522/2022 The offence 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. He is an habitual drug dealer. In the event of grant of bail, he 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 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:- A report submitted by PSI, ., who is the
complainant in this case before the Basavanagudi PS. The contents of the report is as here under:- On 20.7.2022 at about 16.00 hours when the complainant along with his staff were on patrolling duty in search of the accused pertaining to various crimes and when they were passing through APS college, VV Road, MD block, an informant came and gave credible information about the drug trafficking by an unknown person near the play ground, Armugam circle, Basavanagudi, Bangalore. After receiving the information he has informed to his superior officer obtained permission and he along with panchas and staff went to the spot at 4.15 pm., and apprehended the suspected accused. On enquiry he has revealed his name and address. During personal search 1 Kg., 800 grams of ganja seized from accused No.1. Thereafter, a detailed seizure panchanama was drawn. A detail report was prepared and submitted before SHO. Basing on the report, a case in Cr.120/2022 is registered for the offence punishable U/s.8(c), 20(b) of NDPS Act. Thereafter accused was arrested and produced before jurisdictional CCH-33 Crl.Misc.No.7522/2022 Magistrate and remanded to judicial custody. The present petitioner is accused No.1 in the case. During further investigation on the voluntary statement of accused No.1, accused No.3 was arrested on 21.7.2022 and from his possession 7 Kgs., 500 grams of ganja is seized.
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 residents 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. It is argued by the prosecution that the petitioner has
committed heinous offence 9 Kgs., 300 grams of ganja is seized from the petitioner and other accused. The offence punishable with imprisonment upto 10 years and with fine. There are primafacie material available against them.
10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on 20.7.2022 complainant has conducted raid and apprehended accused No.1. On looking to the seizure panchanama the drugs seized from accused No.1 is weighing 1 Kg., 800 grams of ganja and on 21.7.2022 accused No.3 was arrested and 7 Kgs., 500 grams of ganja is seized. 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 9 Kgs. 300 grams of ganja 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.7522/2022 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 9 Kgs., 300 grams of ganja 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 from accused. The offence alleged against the petitioner is not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. 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.
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 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 photo ID proof of his sureties.
CCH-33 Crl.Misc.No.7522/2022
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 8th day of August 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.