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 12 th DAY OF JULY 2022 Crl.Misc.No.6688/2022 Petitioner : Sadik Pasha @ Syed Pasha, S/o (accused No.6) syiyed Abdul Kudus, aged about 50 years, R/at ward No.14, Someshwara Nagar, Magadi taluk, Ramanagara. (By Sri NK.T.H Adv.) V/S. Respondent : State by Madanayakanahalli 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.297/2022 of Madanayakanahalli PS., registered for the offence punishable U/Sec.20(B) of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under: That the petitioner is very innocent and law abiding citizen. He has not committed any offence much less the offence as alleged. He has no knowledge of alleged crime and falsely implanted at the instance of extraneous elements. 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 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 in all seized 4 Kgs., 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 petitioner is punishable with rigorous imprisonment for a term which shall extend upto 10 years. CCH-33 Crl.Misc.No.6688/2022 There is a primafacie 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 PI, ., who is the
complainant in this case before the Madanayakanahalli PS. The contents of the report is as here under:- On 21.06.2022 at about 4.30 Pm., when the complainant was in the station he has received credible information through an informant that at Dasanapura Hobli, Makali Village, Prabha Nagar, in front of Hotte Ramanna building, in the shop of one Sathpal, the worker of Sathpal by name Vikas Sharma is doing the sale of ganja along with 4 other persons. On getting the information he has registered the case in Cr.No.297/2022 against the Sathpal and Vikas Sharma and 4 unknown persons for the offence punishable U/Sec. 20(B) of NDPS Act. 7(a) Thereafter the police inspector of Madanayakahalli police station informed the matter to the higher officer obtained permission to conduct raid. He along with panchas and staff had been to the spot in the evening and mounted surveillance in the spot. He has noticed 6 persons in the spot holding plastic covers. They were trying to sell ganja to the CCH-33 Crl.Misc.No.6688/2022 public. 2 persons were standing holding their motor bikes. When the plastic covers of the said suspected persons were inspected it was containing ganja leaves, stem, flowers, fruits. The said substance was weighed it was found to be 4 Kgs., The said contraband seized under the mahazar they are from Maharashtra and Andhra Pradesh. Further it is revealed during interrogation that A1 and A2 have brought the ganja to sell it to the public, A5 and A6 were packing the ganja and were selling it to the public. A1 to A6 were arrested were produced before the court and were remanded to J.C. The present petitioner is Accused No.6 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. 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.
9. It is argued by the prosecution that the petitioner has
committed heinous offence 4 Kgs., of ganja is seized from the petitioner and other accused. The offence punishable with imprisonment upto 10 years and with fine. There are prima facie material available against him.
10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on 21.6.2022 complainant has conducted raid and apprehended the accused No.1 to 6. On looking to the seizure panchanama the drugs seized from accused No.1 and 2 is weighing 4 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 drugganja 1000 grams is small quantity and 20 Kgs., is commercial quantity. In this case the quantum of ganja seized is 4 Kgs. of ganja is an intermediate quantity. Further in the investigation of papers there is no specific over tact against the present petitioner. The allegation against present petitioner is he used CCH-33 Crl.Misc.No.6688/2022 to purchase ganja from accused No.1 and 2. But in regard, there is no material. 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 4 Kgs., 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 petitioner is not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. His 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 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.
13. 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. CCH-33 Crl.Misc.No.6688/2022
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.
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 his photo ID proof and local address proof document before the court and photo ID proof of his sureties.
7. He shall appear before the court on all 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 12th day of July 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*