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 1 st DAY OF AUGUST 2022 Crl.Misc.No.7401/2022 Petitioner : Shabaz, S/o Ajaz Pasha, (accused No.1) Aged about 22 years, R/at C/o. Next to Puttamma's Property, Bilwaradahalli, Jigani Hobli, Anekal Taluk. (By Sri Shaik Ali, Adv.) V/S. Respondent : State by Bannerghatta 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.97/2022 of Bannerghatta PS., registered for the offences punishable U/Sec.20(b), of N.D.P.S. 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. There is no eye witnesses to say that accused was in actual physical possession of the Ganja as alleged by the complainant. He has not committed any offence as alleged by the complainant, it is only a fictitious story of the complainant just to register a case for their statistical purposes. The petitioner submits that he had come for job purpose, the respondent police have enquired and asked him to show the address proof and took him to the police station and falsely implicated him in the above case. As per the FIR and complaint, the respondent have seized 450 grams of ganja which is less than commercial quantity, therefore it is triable by learned Magistrate. The voluntary statement was drawn as per the whims and fancies of the police to suit their case and as such they cannot be taken into consideration at this stage. The mandatory provisions U/s.20(b) of NDPS Act has not been complied and as such the petitioner is entitled for bail. The seized contraband it not a commercial quantity. There are no eye witnesses who speak about the sale of alleged contraband. Though the alleged offence is non bailable, but is neither punishable CCH-33 Crl.Misc.No.7401/2022 with imprisonment for life or death sentence. The petitioner hails from respectable family and has no bad antecedents or previous convict or any case pending against him. 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 seized 450 grams of ganja from the possession of petitioner herein. The petitioner is found to be in possession of narcotic drug. A detailed mahazar is drawn in the spot. Personal search is conducted. The offence alleged against the petitioner is punishable with rigorous imprisonment for a term which shall extend upto 1 year. There is a prima-facie 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 of
Bannerghatta PSI., who is the complainant in this case. The contents of the report is as here under:- a) That on 17.05.2022 at about 11.30 AM., when the complainant PSI was in the station he has received a credible information that at Kaggalipura, Bannerghatta Main Road, Bilwara Halli Gate, 2 persons were moving suspiciously and were selling ganja. On receipt of the information he has informed to his higher officer, obtained CCH-33 Crl.Misc.No.7401/2022 permission and thereafter, he along with his staff and panchas went to the spot and apprehended the accused. On personal search they seized 450 grams of ganja. A detail seizure panchanama was drawn. Thereafter, he has prepared a detail report which is the basis to register the case against the accused Nos.1 and 2 in Cr.No.97/2022 for the offences punishable U/Sec.20(b)(ii)A R/W 8(c) of N.D.P.S. Act. The present petitioner is accused No.1 in the case.
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. 450 grams of ganja is seized from the possession of the petitioner is a small 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 1 year. Ganja seized from the possession of this petitioner is small quantity. 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, the investigating agency seized 450 grams of ganja under the seizure panchanama. The petitioner is in judicial custody since the date of his arrest i.e., from 17.05.2022. On looking to the seizure panchanama the drugs seized is weighing 450 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 450 grams which is a small 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: CCH-33 Crl.Misc.No.7401/2022 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. The said case law aptly applies to the case on hand in holding that the contraband seized in the case on hand is small 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. What is the connecting link between the present petitioner and other accused no material produced at this stage.
11. Here in this case the drugs seized by the
investigating agency to the tune of 450 grams of ganja which is a small 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 petition under regular statues normal, unless the prosecution points towards exceptional circumstances. The petitioner herein is not having previous criminal antecedents. He is not an habitual offender. 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. 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.
12. 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.50,000/- with one surety for the like sum with following conditions.
1. He shall not leave the jurisdiction of this court without prior permission.
2. He shall not tamper the witness or abscond.
CCH-33 Crl.Misc.No.7401/2022
3. He shall not commit similar offence or any offence while on bail.
4. He shall furnish his photo ID proof and photo ID proof of his sureties.
5. Breach of any of the conditions by the petitioner would entail cancellation of bail.
(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 1st day of August 2022]. (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. PST/*