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 DECEMBER 2022 Crl.Misc.No.11958/2022 petitioners : 1. Putan @ Sathya, S/o.Yunees, a/a (accused No.2 & 3) 23 years , r/at Orange Mandi, City Market, Bengaluru. 2.Ravi, S/o.Narayana Gowda, a/a 36 years, R/at Kailash Lodge, Majestic, Bengaluru Permanent Resident: Near Gopura, Sakarayanapattana, Chikkamagaluru (By Sri.M.Krishne Gowda. Adv.) V/S. Respondent : State by UpparpetPS (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioners to enlarge them on bail, in Cr.No.36/2022 of UpparpetPS., registered 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 citizens. 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. 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 23 Kgs., 320 grams of ganja from the conscious possession of accused No.1 to 3 which is a CCH-33 Crl.Misc.No.11958/2022 commercial quantity. 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 which may extend to 20 years and shall also be liable to fine. The investigation is pending. In the event of his release he may tamper with the prosecution witnesses. Incriminatory articles were seized from his 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 the arguments of both sides and perused the
records.
5. The points that arise for my consideration are as here
under:
1. Whether petitioners have made out sufficient grounds to enlarge them 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 CPI of Upparpete PS., has put the
criminal law into motion. The gist of the allegation reads as here under:- On 7.2.2022 at about 2.00 p.m., when the complainant was in the police station he has received an information that a person will be coming to sell ganja to the public opposite Raffles Park, Soukya road, Samethanahalli village, Anugondanahalli Hobli, Hosakote Taluk, Bangalore rural. He has informed the Higher Officer and obtained permission to conduct raid. He along with his staff and panchas went to the spot at 3.45 pm., and found the suspected person. He has apprehended him and on enquiry, he has revealed his name and identity. During the search of the bag of the accused No.1 the complainant seized 23 Kgs., 320 grams of ganja under mahazar. At the instance of accused No.2 and 3, 1 K.G. 820 Gms of Ganja is seized. Thereafter, a detail seizure CCH-33 Crl.Misc.No.11958/2022 panchanama was drawn. A detail report was prepared and submitted before SHO. Thereafter they were arrested and produced before jurisdictional Magistrate and were remanded to JC. Basing of the voluntary statement of the accused No.1 the present petitioners were apprehended by the investigating agency. The petitioners herein are Accused Nos.2 & 3 in the case. Basing of the voluntary statement of the accused No.1 the present petitioners were apprehended by the investigating agency. The investigating in the case is concluded and the charge sheet is filed.
8. It are argued by the learned counsel for petitioners
that they are planted in the case by the complainant police they are unaware of seized drug. The seized article are not commercial quantity. The mandatory provisions of Sec.41, 42, 50, 52 and 47 of the Act are not complied. They are permanent residents of the address given in the cause title. In the event of grant of bail they are ready to abide by the conditions which are being imposed by this court.
9. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on 21.03.2022 complainant have conducted raid and apprehended accused No.1. On looking to the seizure panchanama the drugs seized from accused No.1 is weighing 23 Kgs., 320 grams of ganja. 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 23 Kgs., 320 grams is Commercial quantity. The investigating agency apprehended accused No.1 on 21.03.2022 and during search of bag of accused No.1 23 Kgs 320 Gms of Ganja is seized from his conscious possession. Basing on the voluntary statement of accused No.1, accused No.2 and 3 were arrested. From their conscious possession 1 Kg 820 Gms of Ganja was recovered. They are in J.C. since the date of their arrest i.e., from 23.02.2022. Now, the investigation in the case is concluded and the charge sheet is CCH-33 Crl.Misc.No.11958/2022 filed. The commercial quantity of contraband is seized from the conscious possession of accused No.1. Basing of the voluntary statement of the accused No.1 the present petitioners were apprehended by the investigating agency. The quantum of contraband seized from the present petitioners is 1 Kg 820 Gms which is 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 are held that: Ss.37 and 20 – Bail – grant of – non commercial quantity – quantity involved being only 14 Kgs., of ganja, which are 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. In the instant case the petitioners herein were arrested by the investigating agency and from their conscious possession 8 Kgs., of ganja is seized. During their voluntary statement they have revealed that they have sold ganja to one Hoova @ Manjunath and one Anand. The said Anand was apprehended by the investigating agency on 5.12.2022 at his house situated at Bajujinagar, Vijayanagar, Bangalore. In the house of Ananda 186 Kgs., of ganja was found stored. The allegation against the present petitioners is they have sold the said quantum of ganja about a month ago to the said Ananda. But in regard to the said sale of ganja the mode of transport of ganja to the house of Ananda and the mode of payment no documents were collected by the investigating agency at this stage. The present petitioners were arrested on 1.12.2022, Ananda from whom commercial quantity is seized was secured on 5.12.2022. therefore, at this stage, the seizure which is effected at the instant of present petitioners have to be taken into consideration.
10. Here in this case the drugs seized by the investigating
agency to the tune of 23 Kgs., 320 grams of ganja which are an intermediate quantity. When the quantity are less than CCH-33 Crl.Misc.No.11958/2022 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 are
concluded as the incriminatory article are already seized from accused. The offence alleged against the petitioners is not punishable with death or imprisonment for life. Further custodial interrogation are not warranted. their Voluntary statement is already recorded. As per the information provided by the petitioners they are permanently residing in the address shown in the cause title. The apprehension of the prosecution that they 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 petitioners U/Sec.439 of Cr.P.C are hereby allowed. The petitioners are enlarged on bail on executing personal bond for a sum of Rs.1,00,000/- each with two sureties for the like sum with following conditions.
1. They shall not leave the jurisdiction of this court without prior permission.
2. They shall not tamper the witness or abscond.
3. They shall not commit similar offence or any offence while on bail.
4. They shall furnish their photo ID proof and local address proof document before the court and photo ID proof of their sureties.
5. They shall appear before the court on all hearing dates.
6. Breach of any of the conditions by the petitioners 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 20th day of December 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*