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 29 th DAY OF JULY 2022 Crl. Misc.No.6967/2022 petitioners : 1. Syed Imran, s/o syed Nazeer (accused No.1 & 2) Ahmed, aged about 38 years, r/at 302, Parvathi Nagar, 6th cross, T.C Palya, K.r Puram, Bengaluru

2. Dinesh @ Tenaton, s/o Murthy, aged about 23 years, K.R Puram, Bengaluru

(By Sri.J.V.S., Adv.) V/S. Respondent : State of Karnataka by Nelamangala Rural Police (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.127/2022 for the offence punishable U/Sec.20(B) of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:-

That the petitioners are innocent and law abiding citizens. They have not committed any offence much less the offence as alleged. They have 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 quantity seized from the possession of the petitioners is less than commercial quantity. The petitioners 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 30 Kgs., of ganja which is a 3 CCH-33 Crl.Misc.6967/2022 commercial quantity. There are sufficient material available against the petitioners, 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 petitioners. The petitioners 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 petitioners.

4. Heard learned counsel for the petitioners and the

prosecution.

5. The points that arise for my consideration are as here

under:

1. Whether petitioners 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 Negative Point No.2: As per the final order for the following:

REASONS

7. POINT NO.1:- The ASI of Nelamanagala Rural PS., has

put the criminal law into motion. The gist of the allegation reads as here under:- On 05.07.2022 at about 12.15 p.m., when the complainant was on patrol duty he has received credible information that on the road Byadarahalli Village, Near Rashi Gate Layout, in the public place two persons are selling ganja to the public in a motor cycle. On receipt of the information he has informed to his higher officer and obtained permission to conduct raid. The complainant along with his staff and panchas went to the spot and saw the suspected persons. He apprehended the said persons. On enquiry they revealed their names and addresses. On search of the bag they found 30 Kgs., of ganja. They seized the same. A detail mahazar is drawn, the accused No 1 and 2 were arrested. A detail report is prepared submitted before SHO. The said report is the basis 5 CCH-33 Crl.Misc.6967/2022 to the register case is against Accused persons in crime No.127/2022 for the offence punishable under Sec.20(B) of NDPS Act.

8. The learned counsel for petitioners argued that the

investigating agency has not followed proper procedure while conducting raid. They are innocent and falsely implanted in the case. The present petitioners are women. They are in no way connected to the crime. In the event of grant of bail they are ready to offer solvent sureties for their due appearance before the court.

9. The prosecution contends that 30 Kgs., of Ganja,

seized from the present petitioners and other accused which is commercial quantity. The petitioners are habitual drug peddlers. In the event of their release they may abscond and may repeat the crime and there is every possibility of absconding of the petitioners. The offences alleged are punishable U/s.20(c) of N.D.P.S. Act is punishable with RI upto 20 years. The petitioners are not entitled for bail.

10. On looking to the prosecution papers the quantum

of narcotic substance seized 30 Kgs., 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 drug – Ganja weighing 1000 grams is small quantity and 20 Kgs., is a commercial quantity. In the present case ganja seized is weighing 30 Kgs ., which is commercial quantity. Further more the petitioners herein were apprehended with the contraband ganja in the place of incident. Their voluntary statement is recorded. Huge quantum of contraband is in their conscious possession.

11. The NDPS Act provides deterrent punishment for

various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. At this stage, it is necessary for me to refer to the judgment of Hon'ble Apex Court in Crl.Appeal No.1043/2021 dated 22.9.2021 in the case Union of India through NCB., Lucknow Vs., Mohammed Nawaz Khan wherein the NCB., Lucknow has challenged the 7 CCH-33 Crl.Misc.6967/2022 order of grant of bail to the accused by the Hon'ble High Court of Allahabad, Lucknow Bench. In the said case the Hon'ble Apex Court pleased to make a detail discussion on the criteria to be considered for grant of bail when the accused is prosecuted under the provisions of NDPS Act. At para­20 of the judgment the Hon'ble Apex Court pleased to note that the High Court and this court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug­trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed. In the present case, the High Court while granting bail to the respondent adverted to two circumstances, namely (i) absence of recovery of the contraband from the possession of the respondent and (ii) the wrong name in the endorsement of translation of the statement under Section 67 of the NDPS Act. As regards to the finding of Hon'ble High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two­judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1)(b) and there was non­application of mind by the High Court. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. Further in regard to non compliance of the procedure laid U/s.42 of NDPS Act, it is held by the Hon'ble Apex Court that it is a question of fact. Further, at Para­30 the Hon'ble Apex Court pleased to make the following essential elements ought to have been considered by the Hon'ble High Court of Lucknow. (i) The respondent was traveling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co­accused; (ii) The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him; 9 CCH-33 Crl.Misc.6967/2022 (iii) The quantity of contraband found in the vehicle is of a commercial quantity; and (iv) The contraband was concealed in the vehicle in which the respondent was traveling with the co­accused. By making a detail observation in granting the bail to the accused is incorrect and has set aside the impugned order. The aforesaid recent judgment of Hon'ble Apex Court clearly highlights on the aspect that what are all the circumstances to be considered and has to be evaluated by the court to consider the bail plea of the accused. 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 primafacie 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 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 petitioners are not guilty of the offences with which they are charged and further that they are 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:­ 11 CCH-33 Crl.Misc.6967/2022 "3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the petitioners are not guilty of such offence and that they are not likely to commit any offence while on bail alone will entitle them to a bail. In the present case, the petitioners 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 petitioners or not. At this juncture, we cannot say that the petitioners are 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 they are 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 petitioners 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 petitioners are not guilty and that they are not likely to commit any offence while on bail. Here in the present case the petitioner No.1 and 2 were apprehended and 30 Kgs., of Ganja was seized from their possession. The quantity of the contraband is commercial quantity. At this stage, there are primafacie materials available against the petitioners in regard to the possession of narcotic drug. At this stage, no material placed on record by the defence to show that the accused are no way connected with the contraband which is seized from the 2 wheeler vehicle of the accused/petitioners herein. In the result, I proceed to hold that the petitioners herein have not made out any grounds to entertain their plea for bail. Accordingly, I answer point No.1 in the negative.

12. Point No.2:- In the result, I proceed to pass

following: 13 CCH-33 Crl.Misc.6967/2022

ORDER

The petition filed by the petitioners U/Sec.439 of Cr.P.C is hereby rejected. [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 29th day of July 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.