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 21 st DAY OF DECEMBER 2022 Crl.Misc.No.12398/2022 Petitioners : 1. Sadhak Chakma, S/o.Prabhath (accused No.1 & 2 ) Kumar Chakma, a/a 24 years, R/at No.26-B, St.Philomena Hospital Road, Opp.Manyatha Tech Park, Nagawara, Bengaluru.
2. Milton Chakma S/o.Ajith Kumar Chakma, a/a 25 years, R/at No.26-B, St.Philomena Hospital Road, Opp.Manyatha Tech Park, Nagawara, Bengaluru.
(by Sri.K.U.Karthik Reddy… Adv) V/S. Respondent : State by Adugodi PS (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.241/2022 of Adugodi PS., registered for the offence punishable U/Sec.20(b) (ii)(B) of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under: That the petitioners are very innocent and law abiding citizen. 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. They are the only earning member of their respective families . The mandatory provisions U/s.50 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.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 7 Kgs 600 grams of ganja from the possession of the accused. The accused are 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 prima facie 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. 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:- A report submitted by PSI, Adugodi PS,
has put the criminal law into motion. The gist of the allegation reads as here under:- On 13/12/2022 at 4.30 PM when the complainant and his staff were on patrolling duty with in the jurisdiction of respondent police station, at about 445 PM while they proceeding on 1st Main, Pothlappa Garden, Hosuru Road, Bengaluru that two persons were standing in a suspicious manner holding bags. He apprehended them and on enquiry the said persons have revealed their names and addresses. On search of the bag they found ganja weighing 7 Kgs 600 grams. The ganja was seized under the mahazar, a detailed mahazar is prepared, report is produced, petitioners are arrested and produced before the court and are remanded to JC. Basing on the report, case in Cr.No.241/2022 is registered against the accused for the offence punishable U/sec 20(b) (ii)(B) of NDPS Act. The petitioners herein are accused No.1 and 2 in the case.
8. It is 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 is 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. It is argued by the prosecution that the petitioners
have committed heinous offence 7 Kg 600 grams of ganja is seized from the petitioners. The offence punishable with imprisonment upto 10 years and with fine. There are prima facie material available against them.
10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on 13.12.2022 complainant has conducted raid and apprehended accused. On looking to the seizure panchanama the drugs seized from accused is weighing 7 Kgs 600 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 7 Kgs., 600 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: 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.
11. Here in this case the drugs seized by the investigating
agency to the tune of 7 Kgs 600 grams of ganja which is an intermediate 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 petitions under regular statues normal, unless the prosecution points towards exceptional circumstances.
12. The major portion of investigation in the case is
concluded as the incriminatory article is already seized from accused. The offence alleged against the petitioners are not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. Their Voluntary statements are 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.
13. 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 is 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. The petitioners 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. They shall not leave the jurisdiction of this court without prior permission.
3. They shall not tamper the witness or abscond.
4. They shall co-operate with I.O for investigation.
5. They shall not commit similar offence or any offence while on bail.
6. They shall furnish their photo ID proof and local address proof document before the court and photo ID proof of their sureties.
7. They 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 Judgment Writer, directly on the computer, typed and computerised by him, corrected, signed and then pronounced by me in Open Court on this the 21st day of December 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*