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 JULY 2022 Crl.Misc.No.7015/2022 Petitioner : Akshay Bindhani, s/o Neelambar, (accused No.2) aged about 35 years, R/at No.402, 6th cross, Vidyamandir School, Macho Halli Gate, Magadi Main road, Bengaluru (By Sri Thilak.Adv.) V/S. Respondent : State by Beguru 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.162/2022 of Beguru 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., 720 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 petitioner is punishable with rigorous imprisonment for a term which shall extend upto 10 CCH-33 Crl.Misc.No.7015/2022 years. 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:- The petitioner is prosecuted for the
offence punishable U/s.20(B) of NDPS Act. He was apprehended by the PSI., Beguru PS., on 17.6.2022 at 5.55 pm., in a vacant space adjacent to site No.95, AECS Layout, C block, near Basapura Main road, Chikkabeguru. The complainant PSI., has received information that on 17.6.2022 that there is sale of ganja by an unknown person in the vacant space adjacent to site No.95, AECS layout, Basapura main road. On receipt of the information he has made a detail report and registered a suo-moto case in Cr.No.162/2022 of Beguru PS for the offence punishable U/Sec.20(B) of NDPS Act against unknown person. Thereafter, as provided under the act he has sought permission of higher officer to conduct raid. After taking permission he along with panchas and staff had been to the spot and found the suspected person. On enquiry he has revealed his name and address. On personal search of the said person 1 Kg., 190 grams of ganja was found. The said ganja was seized under detail mahazar. Petitioner during interrogation has stated that he has purchased the ganja from one Akshay Bindani and Tapan Kumar of Odissa State. He is selling ganja to the public. The said ganja has been noted in PF No.82/2022. 20 plastic covers found in the possession of the accused was also seized. CCH-33 Crl.Misc.No.7015/2022 With a detail report, petitioner is produced before the court and remanded to judicial custody. Basing on the statement of the present petitioner, accused Nos.2 and 3 were apprehended by the investigating agency. They were apprehended on 21.6.2022 at Subashnagar, near Nice road bridge, Basapura main road. The investigation officer has received the information that they are going to arrive to the same spot with contraband. He has constituted a raiding team, visited the spot and apprehended accused Nos.2 and 3. On searching accused Nos.2 and 3, he has found 3 Kgs., 530 grams of ganja from their possession. The said ganja is seized under detail panchanama. They were arrested and produced before jurisdictional Magistrate and was remanded to JC.
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., 720 grams of ganja seized from the present petitioner. The said 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 apprehended present petitioner/accused No.2 and 3 were arrested and at their instance 3 Kgs., 530 grams of ganja is seized. 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 CCH-33 Crl.Misc.No.7015/2022 case the quantum of ganja seized is 4 Kgs., 720 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 4 Kgs., 720 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 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. CCH-33 Crl.Misc.No.7015/2022 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.
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 21st day of July 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.