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 20th DAY OF August 2022
Crl. Misc.No.7343/2022
Petitioner :
(accused No.)

Sri. Ajmal Nanath Valiyatt,
Aged about 30 years.
S/o. Haris Nanath Valiyatt
R/o. Nanath Valiyatt House,
Melmuri,Malappuram
Kerala, Indiaн676505.
(By Sri Seethal .S, Adv.)
V/S.

Respondent :
Union of India
Narcotics Control Bureau
Bengaluru Zonal Unit,
Through Intelligence Officer
City Civil Court Complex
Bengaluru
(By Spl. Public Prosecutor)
ннн
2
ORDER
The present petition U/Sec.438 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in the event of his arrest in
Cr.No.48/1/11/2022 of NCB., Bangalore registered for the
offences punishable U/Sec.8(c) R/w.Sec.21 of NDPS Act.

2. The prevalent grounds urged seeking bail:н
That the petitioner is very innocent and law abiding
citizen.

He has not committed any offence much less the
offence as alleged.

He has 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. It is urged by the petitioner that he is a
sales man and he is working in a medical shop named Aliya
Medicals situated in Malapuram District, Kerala for the past 6
months. He is not aware of any courier on that particular day
and he is busy in doing his sales work. Without his knowledge
the owner of the shop one Thaha had issued his Aadhar card
for dispatching the banned medicine Clonazepam tablet to the
foreign country through airways.

Aadhaar card of petitioner
3
CCHн33
Crl.Misc.7343/2022
has been misused and a fake signature has been made. It is
further urged that while verifying
the documents which is
produced by the investigating agency the doctor prescription
pad is sponsored by the Aliya Medicals and while checking the
tax/medical bill is also in the name of Aliya medicals. The
owner of the medical shop is one Mr.Thaha who has created a
fake doctor prescription dated 14.3.2022 by using fake patient
name. Since the said Aliya medical and its owner have very
deep root in the case the investigation agency is trying to
protect the medical shop owner. The petitioner herein had
never been to the courier shop. One Mr.Thaha went to the
courier office by taking the petitioner’s Aadhaar card without
the knowledge of the petitioner. He apprehends arrest in the
hands of respondent police. In the event of his arrest he would
be put to untold hardship. Petitioner is permanent resident of
the address shown in the cause title. 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. Hence, sought to grant bail.

4
3. The prosecution filed objection contending that the
present petitioner along with the owner of the medical shop in
conspiracy has send various drugs to abroad on many times.
The investigation in the case is in progress, some more persons
are yet to be examined and reports and other relevant
information is required to be obtained from various agencies
and forensic lab. Though the IO., NCB has sent summons to
the petitioner directing him to appear for investigation on
6.7.2022, he has failed to appear before the IO., NCB. He is
very well aware of the drug trafficking business. He is doing
drug trafficking along with Sri Thwaha Ummar. The petitioner
has some links with international level drug trafficking and
therefore he is avoiding the investigation agency.
investigation
is
pending.

If
the
petitioner
is
The
granted
anticipatory bail he may abscond and may tamper with the
prosecution witnesses.

He may involve himself in similar
offences. Hence, sought to reject the bail plea of petitioner.
4. Heard the arguments of both sides and perused the
records.

CCHн33
Crl.Misc.7343/2022
5
5. The points that arise for my consideration are as here
under:
1. Whether petitioner has made out
sufficient grounds to enlarge him on
anticipatory 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:н
The gist of the allegation levelled in the
prosecution papers are as here under:н
On 7.5.2022 at about 10.30 hours IO., NCB has received
credible
information
that
a
suspicious
parcel
bearing
No.1826193810 laying at DHL Express (India) Pvt., Ltd., KIA.,
Bengaluru and suspected to be containing Clonazepam tablet
which is covered under the NDPS Act. After getting necessary
orders of superintendent, NCB., Bangalore Zonal Unit, IO.,
NCB formed a team along with DD kit and staff and been to
the spot. When he has enquired about the suspected parcel
6
bearing way bill No. 1826193810 it was placed before NCB
team.

The parcel was in the form of white colour polythene
cover of DHL and was found to be from one Ajmal Nanath
Valiyatt,
s/o.Haris
Nanath
Valiyatt
of
Kerala
and
was
addressed to Zainul Abid Mannan Paramban, Saudi Arabia.
The
suspected
parcel
independent witnesses.

was
opened
in
the
presence
of
On opening the white coloured
polythene cover it was found to be containing a small brown
coloured carton box and mentioned on the box Уpurchased on
amazonФ in India’s largest online store. On further opening the
above said carton box it was found to be containing 6 nos., of
bottles of septilin tablets 60. All the bottles were having loose
and unsealed lid.

All the 6 bottles were manufactured by
Himalaya Drug company. The net contents is 60 tablets. One
bottles was opened and it was found to be containing 374 nos.,
of white coloured tablets of Rivotril.

Other 5 bottles were
opened and each bottles was found to be containing 374 nos.,
of tablets Rivotril. In all 2244 tablets found in the said bottles.
All the tablets were put together into one transparent
polythene zip lock cover and weighed. The weight of the entire
7
CCHн33
Crl.Misc.7343/2022
substance came out to be 357 grams. The contains of Rivotril
2 is Clonazepam a psychotropic substance and it is prohibited
in NDPS Act. All the tablets were seized. The polythene zip
lock cover containing substance was wrapped with transparent
coloured tape and transferred into a green colour paper
envelop.

The sample of
the tablet was sent to CFSL.,
Hyderabad. The report also received by the NCB. As per the
report in Ex.S1 sample Clonazepam has been detected. The
report of CFSL is also available in the case record. The IO NCB
after seizure of the parcel and receipt of the parcel has
proceeded with the investigation and as per the prosecution
papers the present petitioner has booked the parcel. Now, in
the present petition, petitioner is seeking anticipatory bail.

8. It is urged by the petitioner that he is a sales man and
he is
working in a medical shop named Aliya Medicals
situated in Malapuram District, Kerala for the past 6 months.
He is not aware of any courier on that particular day and he is
busy in doing his sales work.

Without his knowledge the
owner of the shop one Thaha had issued his Aadhar card for
8
dispatching the banned medicine Clonazepam tablet to the
foreign country through airways.

Aadhaar card of petitioner
has been misused and a fake signature has been made. It is
further urged that while verifying
the documents which is
produced by the investigating agency the doctor prescription
pad is sponsored by the Aliya Medicals and while checking the
tax/medical bill is also in the name of Aliya medicals. The
owner of the medical shop is one Mr.Thaha who has created a
fake doctor prescription dated 14.3.2022 by using fake patient
name. Since the said Aliya medical and its owner have very
deep root in the case the investigation agency is trying to
protect the medical shop owner.

The petitioner herein had
never been to the courier shop. One Mr..Thaha went to the
courier office by taking the petitioner’s Aadhaar card without
the knowledge of the petitioner.
9.

The prosecution vehemently contends that the
present petitioner along with the owner of the medical shop in
conspiracy has send various drugs to abroad on many times.
The investigation in the case is progress, some more persons
are yet to be examined and reports and other relevant
9
CCHн33
Crl.Misc.7343/2022
information is required to be obtained from various agencies
and forensic lab. Though the IO., NCB has sent summons to
the petitioner directing him to appear for investigation on
6.7.2022. He has failed to appear before the IO., NCB. He is
very well aware of the drug trafficking business. He is doing
drug trafficking along with Sri Thwaha Ummar. The petitioner
has some links with international level drug trafficking and
therefore he is avoiding the investigation agency.
10. I have carefully gone through the material placed on
record.

As per the investigation papers, the IO., NCB has
seized the parcel containing Clonazepam tablets 357 grams.
The said parcel is booked by the present petitioner. The name
and address referred on the parcel belongs to the present
petitioner. Though in the present petition he contends that he
is working in the medical shop and his owner has booked the
parcel, at this stage, when the matter is pending investigation,
the said plea of the petitioner could not be entertained. It is
also to be noticed that though the IO., NCB., has issued notice
U/s.67 of NDPS Act, the petitioner has failed to appear before
the investigating officer.

As per specification of small and
10
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.189 the narcotic drug Clonazepam Ц weighing 05 grams
is small quantity and 100 grams is commercial quantity. In the
present case 357 grams of Clonazepam narcotic substance
seized is a commercial quantity.

11.

Further, it is necessary for me to refer to the
judgment of the Hon’ble Apex Court in the case of Satpal
Singh Vs., State of Punjab in 2018 SAR (Criminal) 623 was
pleased to hold that when a person is found to be in illegal
possession of contraband of commercial quantity, the Court
would not have granted anticipatory bail to the accused.
Further the Hon’ble High Court could not have passed order
U/s.438 or 439 of Cr.P.C., without reference to Sec.37 of NDPS
Act and without entering a finding on the required level of
satisfaction in case the court was otherwise inclined to grant
the bail.

11
12.

CCHн33
Crl.Misc.7343/2022
In the recent judgment of Hon’ble Apex Court
reported in Nathu Singh and Ompal Singh vs., state of UP and
others in Crl.Appeal No.522/2021 (SLP.Crimes Crl.2096/2021)
dated 28.5.2021 the Hon’ble Apex Court while dismissing an
anticipatory bail plea held that courts have been enshrined
with discretionary powers for deciding anticipatory bail pleas.
However, such discretionary power cannot be exercised in an
untrammeled manner. The court must take into account the
statutory scheme U/s.438 of Cr.P.C., particularly, the proviso
to sec.438(1) Cr.P.C., and balance the concerns of the
investigating agency, complainant and the society at large with
the concerns/interest of the applicant.

Therefore, such an
order must necessarily be narrowly tailored to protect the
interest of applicant while taking into consideration the
concerns of the investigating authority. Such an order must
be a reasoned one.
In the case of MP and another vs., Ramkishan Bolithya
and another reported in 1995 SCC 3 221 the Hon’ble Apex
Court held that getting anticipatory bail cannot be considered
12
as a fundamental right mentioned under article 21 of the
Indian constitution.
Further in the case of Susheel Agrawal and others Vs.,
State by NCB of Delhi and another Spl.L.P(Crl Nos.7281н
7282/2017 dated 29.1.2020. The Hon’ble Apex Court while
answering the reference was pleased to laid down several
guidelines to be kept in the mind of courts which dealing with
438 Cr.P.C., applications. One of the guideline is court ought
to be generally guided by considerations such as the nature
and gravity of the offences, the role attributed to the applicant
and the facts of the case, while considering whether to grant
anticipatory bail or refuse it.

Whether to grant or not is a
matter of discretion; equally whether and if so, what kind of
special conditions are to be imposed (or not imposed) are
dependent on facts of the case, and subject to the discretion of
the court.

13.

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
13
CCHн33
Crl.Misc.7343/2022
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 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 paraн20 of the judgment
the Hon’ble Apex Court pleased to note that:н
Уthe 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 drugнtrafficking
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
14
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 twoнjudge 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 СpossessionТ 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
nonн
application 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.Ф
14. 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 Paraн30 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.

CCHн33
Crl.Misc.7343/2022
15
(i) The respondent was traveling in the vehicle all the
way from Dimapur in Nagaland to Rampur in Uttar
Pradesh with the coнaccused;
(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;
(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 coн
accused.

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.

15. On going through the material placed on record by
the investigating agency, at this stage, there are materials
available
the
present
petitioner,
he
has
booked
the
contraband. Further, contraband seized in this case is
16
commercial quantity of Clonazepam.

In the judgment of
Hon’ble Apex Court in the case of UOI vs., Rathan Mallik
reported in 2009 (2) SCC 624 the Hon’ble Apex Court cancelled
the bail of accused and reversed the finding of Hon’ble High
Court which was held as the contraband was recovered from a
specially made cavity above the cabin of a truck.

No
contraband was found in the possession of the accused. The
Hon’ble Apex Court observed that merely making a finding on
the possession of contraband did not fulfill the parameters of
Sec.37 of NDPS Act and there was non application of mind by
the Hon’ble High Court. The finding of absence of possession
of contraband on the person does not absolve it of the level of
the scrutiny required U/s.37(1)(b)(ii) of NDPS Act. Herein in
his case, the petitioner is claiming the extra ordinary relief of
anticipatory bail.

At this stage, the investigation papers
available on record indicate that there are prima facie
reasonable grounds to believe that the petitioner has booked
the drug parcel involved in the case. Therefore, I am of the
opinion that the petitioner herein is not entitled for bail.

17
CCHн33
Crl.Misc.7343/2022
Accordingly, points for consideration are answered in the
negative.
16. Point No.2:н In the result, I proceed to pass following:
ORDER
The petition filed by the petitioner U/Sec.438
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 20th day of August 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*