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 SEPTEMBER 2022 Crl.Misc.No.9149/2022
Petitioners: 1.Sri.Ajaykumar Majhi (accused No.1 & 2) S/o.late Aruna Majhi, a/a 40 years, R/at Srinviasa Building, Kachanayakanahalli, Near SBI Bank, Jigani Hobli, Anekal Taluk, Bengaluru District and Permanently at Gagan Dhuni Village, Arakhapur Post, Dhungura Taluk, Kharari Police Station, Baleshwar District, Odissa State.
2. Sri.Jithun Kumar Posh – as per the memo filed by learned counsel for petitioners. Petition filed by petitioners No.2 stands dismissed as not pressed on 14.9.2022.
(By Sri PVV., Adv.)
V/S.
Respondent : State by Hebbagudi PS Bengaluru (By Public Prosecutor) O R D E R The present petition is filed by the petitioners U/s.439 of Cr.P.C., to enlarge them on bail, in Cr.No.270/2022 of Hebbagudi PS., registered for the offence punishable U/Sec.20(b) (ii) (B) of NDPS Act.
2. The grounds urged by the petitioners for grant of bail are as under: That the petitioners are very innocent and law abiding citizens. They have not committed any offence much less the offence as alleged. They have no knowledge of alleged crime and falsely implanted at the instance of extraneous elements. The mandatory provisions U/s.20(b) (ii) (B) of NDPS Act has not been complied. There are no eye witnesses who speak about the sale of alleged contraband. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. The petitioners are ready and willing to abide by any conditions imposed by this court in the event of grant of bail. They are ready to offer surety for their due appearance before this court. They have no bad antecedents. They are the sole bread earners of their family. Hence, sought to grant bail. CCH-33 Crl.Misc.No.9149/2022
3. The objection raised by the prosecution is that the investigating agency has in all seized 1 Kg 430 Grams of Ganja from the possession of the accused. The accused is found to be in possession of narcotic substance. A detailed mahazar is drawn in the spot. Personal search is conducted. The offence alleged against the petitioners are punishable with rigorous imprisonment for a term which shall extend upto 10 years. There is a primafacie case available against the petitioners. They are habitual drug dealers. In the event of grant of bail, they would abscond and may hamper the investigation. Hence, sought to reject the bail plea of petitioners.
4. Heard the arguments of both sides and perused the records.
5. Initially the learned counsel for the petitioners filed the bail petition seeking grant of bail to accused Nos.1 and
2. Later he has filed a memo not pressing the bail petition of accused No.2. Therefore, the bail petition of accused No.2 stands rejected as not pressed. The present petitioner who is seeking bail is accused No.1 in the case.
6. The points that arise for my consideration are as here under:
1. Whether petitioner No.1 has made out sufficient grounds to enlarge him on bail?
2. What order?
7. 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
8. POINT NO.1:- A report submitted by PSI, ., who is the complainant in this case before the Hebbagudi PS. The contents of the report is as here under:- On 3.9.2022 at 3.00 pm., when the complainant PI., was discharging duties in the police station received credible information that at Jigani Hobli, Tirupalya, Vajapaye circle, Hulimangala road which leads to stone quarry Anekal taluk two persons would arrive to the said spot to sell contraband. On noting the information he has called panchas to the police station and requested them to be present at the time of raid. He along with panchas and staff, investigation tolls been to the spot around 5.00 pm., and mounted CCH-33 Crl.Misc.No.9149/2022 surveillance in the spot. Two persons carrying a school bag came there. They were surrounded and enquired. They have revealed that they are in possession of contraband and their names are Ajay Kumar Majhi, Jithun Kumar Posh and they are from Odissa state. Dy.S.P., was called to the spot in his presence search was conduced. During search 1 Kg 430 Grams of Ganja was found. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared and submitted before SHO which is the basis to register the case against the accused in Cr.270/2022 for the offence punishable U/s.20(b) (ii) (B) of NDPS Act. Thereafter accused were arrested and produced before jurisdictional Magistrate and remanded to judicial custody.
9. It is argued by the learned counsel for petitioner No.1 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 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.
10. It is argued by the prosecution that the petitioner has committed heinous offence 1 Kg. 200 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 him.
11. On careful analysis of rival contentions and the prosecution papers available on record, it is evident that on 3.09.2022 complainant has conducted raid and apprehended accused. On looking to the seizure panchanama the drugs seized from accused is weighing 1 Kg 430 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 1 Kg 430 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: CCH-33 Crl.Misc.No.9149/2022 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 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.
12. Here in this case the drugs seized by the investigating agency to the tune of 1 Kg 430 Grams of Ganja which is an intermediate quantity. When the quantity is less than commercial quantity, rigors of Sec.20(b) (ii) (B) 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.
13. 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. their Voluntary statement is already recorded. 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 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.
14. Point No.2:- In the result, I proceed to pass following:
ORDER
The Petition filed by the petitioner No.1 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.
CCH-33 Crl.Misc.No.9149/2022
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 their photo ID proof and local address proof document before the court and photo ID proof of their sureties.
7. He shall appear before the court on all hearing dates.
8. 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 September 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.