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 23 rd DAY OF NOVEMBER 2022 Crl.Misc.No.11117/2022 petitioner : Vyshali Das, D/o.Gopal Das, a/a 29 (Accused No.4) years, R/at No.132, Juariya Park, Margam S.R.Road, Mumbai-49, now at Bengaluru. (By Sri Gopal. Adv.) V/S. Respondent : State by Amruthahalli 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 her on bail, in Cr.No.253/2022 of Amruthahalli PS., registered for the offences punishable U/Sec.22(B) of N.D.P.S. Act.
2. The grounds urged by the petitioner for grant of bail
are as under: That the petitioner has never committed or involved in the alleged crime either directly or indirectly but she has been falsely implicated in the above case. The petitioner submit that the voluntary statements were drawn by the police at their whims and fancies to suit their case. The seizure of ganja from the possession of the petitioner is concocted to suit the purpose and these accused is implicated after the date of incident. No incriminating articles were recovered after getting the custody of these accused. The mandatory provisions U/s.42(2), 50 and 57 of NDPS Act has not been complied. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. The petitioner is ready and willing to abide by any conditions imposed by this court in the event of grant of bail. She is ready to offer surety for their due appearance before this court. Hence, sought to grant bail. CCH-33 Crl.Misc.No.11117/2022
3. The objection raised by the prosecution is that the
investigating agency has seized 3 grams of Cocaine and 15 Ecstasy Pills 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 may extent upto 10 years. There is a prima-facie case available against the petitioner. She is habitual drug dealers. In the event of grant of bail, she would abscond and may hamper the investigation. Hence, sought to reject the bail plea of petitioner.
4. Heard the arguments of both sides.
5. The points that arise for my consideration are as here
under:
1. Whether petitioner 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:- A report submitted by ASI,
Amruthahalli., who is the complainant in this case before the Amruthahalli PS. The contents of the report is as here under:- On 20.10.2022 at about 4.30 pm., the complainant has received an information through an informant through the ACP of Sampigehalli that at Lumbini Garden, Service Road within the limits of Amruthahalli police station., two persons are selling cocaine and ecstasy pills to the public. On receipt of the information as the PSI of the said jurisdiction was some other duty, ASI he along with staff and panchas had been to the spot and found the suspected persons. On seeing them they were carrying bags. On enquiry they have revealed their names and addresses. On questioning the contents of bag they have stated that they are possessing 03 grams of cocaine and 15 ecstasy pills. On search of the bags they searched 3 grams cocaine and 15 ecstasy pills. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared & CCH-33 Crl.Misc.No.11117/2022 submitted before SHO which is the basis to register the case against the accused Nos.1 & 2 in Cr.No.253/2022 of Amruthahalli PS registered for the offence punishable U/Sec.22(b) of NDPS Act and Sec.14 of Foreigners Act. Thereafter the accused Nos.1 and 2 were arrested and produced before jurisdictional Magistrate and were remanded to judicial custody. Basing on the voluntary statement of accused Nos.1 and 2, the present petitioner who is shown as accused No.4 in the remand application is arrested. The allegation against the present petitioner is she has assisted accused Nos.1 to 3 in drug peddling. She is well acquainted with the drug peddling business of accused No.1. She got acquainted with accused No.1 through instagram app and they are good friends. She was paying money to accused No.1 through her Indian Overseas Bank account and Mobile phone pay. Her account was used by accused No.1 for monitory transactions. He was paying some amount out of the profit he has accrued.
8. It is argued by the learned counsel for petitioner that
she has planted in the case by the complainant police she is unaware of seized drug. 3 grams of Cocaine and 15 Ecstasy Pills is seized from the possession of accused Nos.1 and 2 is not commercial quantity. The mandatory provisions of Sec.41, 42, 50, 52 and 47 of the Act are not complied. She is permanent resident of the address given in the cause title. In the event of grant of bail she 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 10 years and with fine. Ganja seized from the possession of accused persons is intermediate quantity. In the event of grant of bail she is going to abscond and may hamper investigation.
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating CCH-33 Crl.Misc.No.11117/2022 agency seized 3 grams of Cocaine and 15 Ecstasy Pills under the seizure panchanama. The petitioner is in judicial custody since the date of their arrest i.e., from 27.10.2022. On looking to the seizure panchanama the drugs seized is weighing 3 grams of Cocaine and 15 Ecstasy Pills from accused Nos.1 and
2. 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. Sl.No.27 the narcotic drug – Cocaine 02 grams is small quantity and 100 grams is commercial quantity. In this case the quantum of Cocaine seized from accused Nos.1 & 2 is 03 grams which is intermediate quantity. Likewise, at Sl.No.134 the narcotic drugMDMA 0.5 grams is small quantity and 10 grams., is commercial quantity. On going through the police report and the detail mahazar drawn in the case the contraband seized in the case is 15 ecstasy pills. But in regard to the quantum of ecstasy pills is no where mentioned in the prosecution papers. Though this court has directed the IO., to produce the detail report about the weight of the contraband ecstasy pills, but he has failed to produce any report before the court. Therefore, to ascertain whether the contraband contraband 15 ecstasy pills seized in the case is a commercial quantity there is no document placed by the IO. The present petitioner is friend of accused Nos.1 and 2. her account has been used by accused No.1 for the business of drug peddling. From the present there is no recovery of contraband. She is in Judicial Custody since 27.10.2022. 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 MDMA, 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 intermediate quantity and it is not commercial quantity. In the said CCH-33 Crl.Misc.No.11117/2022 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 3 grams of cocaine and 15 ecstasy pills. 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.
11. The petitioner herein are not having previous
criminal antecedents. She is not 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 She is permanently residing in the address shown in the cause title. The apprehension of the prosecution that she 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.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. She shall not leave the jurisdiction of this court without prior permission.
3. She shall not tamper the witness or abscond.
4. She shall co-operate with I.O for investigation.
5. She shall not commit similar offence or any offence while on bail.
6. She shall furnish their photo ID proof and photo ID proof of their sureties.
7. She shall appear before the court on all
CCH-33 Crl.Misc.No.11117/2022 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 23rd day of November, 2022]. (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*