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 12th DAY OF SEPTEMBER 2023
Crl.Misc.No.8478/2023
Petitioner :
(accused No.1)
Alla Bakash @ Lucky,
S/o Mehboob Pasha, Aged 18 Years,
R/at No.682, 11th Cross, Thimmaiah
Main road, Indiranagar, Rajajinagar,
Bengaluru-560010
(By Sri P Chiranjeevi , Adv.)
V/S.

Respondent :
State by Basaveshvaranagar PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by
the petitioner to enlarge him on bail, in Cr.No.147/2023 of
Basaveshwaranagar
PS.,
registered
punishable U/Sec.20(B) of N.D.P.S. Act.

for
the
offence
2
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 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. The procedure contemplated under
N.D.P.S. Act not followed while recovery. The voluntary
statement of the petitioner is drawn as per the whims and
fancy of the respondent. 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.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 2 Kgs., 400 grams of
ganja.

The
offence
alleged
against
the
petitioner
is
punishable with rigorous imprisonment for a term which
shall extend upto 10 years. There is a primafacie case
3
CCH-33
Crl.Misc.No.8478/2023
available against the petitioner. He is an habitual drug
dealer. There are Nos., of cases pending against the present
petitioner in different courts under the different provisions
of IPC. There is prima-facie case made out against
petitioner. If petitioner is released on bail, he will continue
the profession of narcotic drug selling, and he may abscond
and tamper evidence of the prosecution. 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
4
7. POINT NO.1:- A report submitted by PSI, who is the
complainant in this case before the Basaveshwaranagar PS.
The contents of the report is as here under:On
07-06-2023
complainant
the
HC
at
about
of
4.30
pm.,
Basaveshwaranaar
when
the
PS.,
was
discharging his duty in the station, he has received credible
information
that
a
person
is
selling
contraband
at
Shivanahalli play ground, Shivanagar, Bangalore. On receipt
of the said information he went to the spot to confirm about
the same.

On vising the spot he saw the suspect and
confirmed about the information of sale of ganja and
returned to the station and submitted a report. Basing on
the report a case in Crime No.147/2023 was registered
against an unknown person for the offence punishable
under Section 20(b) of NDPS Act. Thereafter, he has
informed
the
matter
to
permission to conduct raid.

higher
officer
and
obtained
He along with his staff and
panchas went to the spot and apprehended the suspect. On
enquiry he revealed his name and address.

On search of
the bag of the accused it was containing ganja. On weighing
the same the weight came around 1 Kg., 358 grams of
CCH-33
Crl.Misc.No.8478/2023
5
ganja. A detail mahazar is drawn and incriminatory ganja is
seized. The accused was arrested, produced before the court
and remanded to judicial custody.
8. It is argued by the learned counsel for petitioner
that
accused
has
been
foisted
in
the
case
by
the
investigating agency falsely. Further petitioner is in custody
since the date of his arrest. Custodial interrogation is not
warranted. In the event of bail he is ready to offer solvent
surety. The mandatory provisions of Sec.41, 42, 50, 52 and
47 of the Act are not complied.
9. It is argued by the prosecution that the petitioner is
having criminal antecedents.

He is prosecuted in several
criminal cases. In the event of grant of bail he would repeat
the crime. Further the investigation would be hampered.

10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 1 Kg., 358 grams of ganja under the seizure
panchanama. The petitioner is in judicial custody since the
date of his arrest i.e., from 7.6.2023.

On looking to the
seizure panchanama the drugs seized are weighing 1 Kg.,
6
358 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 drug-ganja 1000 grams is small
quantity and 20 Kgs., is commercial quantity. In this case
the quantum of ganja seized is 1 Kg., 358 grams which 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 Ц Bail Ц grant of Ц non commercial quantity
Ц quantity involved being only 14 Kgs., of ganja, which is
a non commercial quantity appellant accused not involved
in any other case Ц in above circumstances, held,
appellant should be released on bail, pending trial Ц
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.

It is argued by the prosecution that petitioner
herein is prosecuted in other cases and therefore, he is not
CCH-33
Crl.Misc.No.8478/2023
7
entitled for bail. On the other hand, learned counsel for
petitioner submitted that in the other cases after full fledged
trial, the accused herein has been acquitted. The accused is
not prosecuted under the provisions of NDPS Act. Further,
as per the dictum of Hon’ble High Court in Crl. Appeal
No.152/2020
dated
24.1.2020
mere
registration
of
number of cases is not a ground to reject the bail. In the
order of Hon’ble High Court in Crl.Petition No. 3121/2020
dated 22.7.2020 in Y M Chetan and anr., Vs., State of
Channarayapatna Town PS., wherein the Hon’ble High
Court while entertaining the bail plea of accused has taken
into consideration that mere number of cases pending
against the petitioner cannot be a ground to reject the bail.
Herein the instant case, the petitioner is prosecuted in
several criminal cases, in some of the cases after full fledged
trial, he is acquitted. In certain other criminal cases he is
prosecuted which is pending adjudication and it is not an
offence under the NDPS Act.

Further, in regard to those
cases, no document is placed before this court by the IO.
Even otherwise, as per the dictum referred above mere
number of cases is not a ground to reject the bail.

8
12.

Here in this case the drugs seized by the
investigating agency to the tune of 1 Kg., 358 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. The
major portion of investigation in the case is concluded as
the incriminatory article is already seized. The offence
alleged against the petitioner is not punishable with death
or imprisonment for life. Further custodial interrogation is
not warranted. 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,
in
I
answer
the
point
for
consideration
the
affirmative.

13. Point No.2:-
In the result, I proceed to pass
following:
ORDER
CCH-33
Crl.Misc.No.8478/2023
9
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.

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
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.

with
I.O
for
[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 21th day of September 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.

10
CN/*