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 26th DAY OF August 2022
Crl.Misc.No.8034/2022
Petitioner :
(accused No.4)
Amjad Khan, S/o Nawab Khan,
Aged about 40 years, Occ:
Autoriskshaw Owner cum Driver,
R/at No. 30/2, 4th Main Road,
Bangalore South,
Adugodi, Bengaluru 560 030.
(By Sri RaviKumar M.B , Adv.)
V/S.

Respondent :
State by RT Nagar PS
(By Public Prosecutor)
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.09/2022 of RT Nagar PS., registered for the
2
offence punishable U/Sec.20(b)(ii)(a), 27A, 29, 32нB(b) of
N.D.P.S. 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 investigation in the case is concluded and
Charge sheet is filed.

Custodial detention of petitioner is
not warranted. The quantum of contraband involved in the
case is intermediate.

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.

CCHн33
Crl.Misc.No.8034/2022
3
3. The objection raised by the prosecution is that the
investigating agency has seized 5 Kgs., 750 grams of ganja
from the possession of other accused.

The petitioner is
actively involved in the crime. A detailed mahazar is drawn
in the spot.

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
available against the petitioner.
dealer.

He is an habitual drug
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
anticipatory bail?
2. What order?
6. My findings on the above points are as under:
4
Point No.1: In the Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:н A report submitted by PSI., who is the
complainant in this case before the RT Nagar PS.

The
contents of the report is as here under:н
a) That on 13.01.2022 when the complainant was on
patrolling duty in Hoysala vehicle he has received a call from
the Control room that 4 persons are roaming suspiciously at
the backside of 80 feet road. He has visited the said spot
and on seeing the vehicle the aforesaid persons tried to
escape from the spot.

But the investigating agency was
successful in catching the said persons.

When they
searched the cloth bag of the said kakhi dressed person they
found ganja inside the bag which was weighing 400 grams.
They took the said persons to the police station with ganja
packets.

On
enquiry
they
revealed
that
they
are
Koramangala police constables and have bought ganja from
the house of accused No.3 for the purpose of sale.
Accused were arrested and the contraband is seized and
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CCHн33
Crl.Misc.No.8034/2022
detail mahazar is drawn. The seized article is packed and
seal affixed. Thereafter detail report is prepared and
submitted before Station House officer which is the basis to
register a case against the accused Nos.1 to 4 in crime
No.9/2022 for the offences punishable under section 20(b)
of NDPS Act. The petitioner herein is the accused No.4 in
the case. The investigation is concluded and Charge sheet
is filed.
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 allegation against the
petitioner herein he has conspired with accused Nos.1 and 2
and offence alleged is Sec.29 of NDPS Act. Accused Nos.1
and 2 are police constables. They belong to RT Nagar Police
Station. The petitioner apprehends arrest in the hands of
police as the offence alleged against him is non bailable in
nature.

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.

6
9.

The prosecution opposed the bail plea on the
ground that the offence alleged against the petitioner is
punishable upto 10 years. In the event of grant of bail he is
going to abscond and may hamper investigation.

10. On careful analysis of rival contentions and the
prosecution papers available on record the investigating
agency seized 5 Kgs., 750 grams of ganja under the seizure
panchanama from accused Nos.1 and 2. The petitioner is
shown as absconding.

The allegation against the present
petitioner is he has conspired with accused Nos.1 and 2 in
commission of offence.

The investigation in the case is
concluded and Charge sheet is filed. Custodial interrogation
of petitioner is not warranted. The incriminatory material is
already seized. On looking to the seizure panchanama the
drugs seized is weighing 5 Kgs., 750 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 drugнganja 1000
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CCHн33
Crl.Misc.No.8034/2022
grams is small quantity and 20 Kgs., is commercial
quantity. In this case the quantum of ganja seized is 5 Kgs.,
750 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
small 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 5 Kgs., 750 grams of
ganja which is an intermediate quantity. When the quantity
is less than commercial quantity, rigors of Sec.37 of the
8
NDPS Act will not attract, and factors become similar to bail
petition
under
regular
statues
normal,
unless
the
prosecution points towards exceptional circumstances. The
petitioner
herein
antecedents.

is
not
having
previous
criminal
He is not an habitual offender.

The
investigation in the case is concluded and Charge sheet is
filed.

The incriminatory article is already seized.

The
offence alleged against the petitioner is not punishable with
death or imprisonment for life.
not warranted.

Custodial interrogation is
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.

12. 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 allowed.

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CCHн33
Crl.Misc.No.8034/2022
The respondent police is directed to release the
petitioner on bail in the event of his arrest in
Cr.No.9/2022 of RT Nagar Station for the offences
punishable U/s.20(b) of N.D.P.S. Act, on executing
personal bond for a sum of Rs.1,00,000/н with two
sureties for the like sum with following conditions:н
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
coнoperate
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 26th day of August 2022].

(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*