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 DECEMBER 2022
Crl. Misc.No.11681/2022
Petitioner :
(accused No.4)
Amjad Khan, S/o.late Kareem Khan,
a/a 28 years, R/at No.73/26, 6th
Main, 7th Cross, Pillappa Block,
Ganganagar, R.T.Nagar, Bengaluruн
560032
(By Sri.Syed Abrar Adv.)
V/S.

Respondent :
State by KG Nagar PS
(By Public Prosecutor)
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
filed by the petitioner to enlarge him on bail, in Cr.No.39/2022
of
KG
Nagar.,
registered
for
the
offences
punishable
U/Sec.22(c), 20(b)(ii)(b) of N.D.P.S. Act in Spl.C.C 2070/2022.

2
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. The procedure contemplated under N.D.P.S.
Act not followed while recovery. The respondent police
apprehended the petitioner from his residence forcefully on
26.3.2022 and they have filed false case against him. He was
in illegal custody for two days. They have wrongly shown the
place of arrest. There is no recovery of contraband from the
present petitioner. If he is detained in the Central prison his
career will be spoiled in the midst of the other criminals in the
prison. The contraband seized is not commercial quantity. The
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
CCHн33
Crl.Misc.11681/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 23.83 grams of MDMA, 0.56
grams of LSD papers, 2.67 grams of Ecstasy tablets, 1Kg., 100
grams of ganja
which is a commercial quantity. There are
sufficient material available against the petitioner, and the said
offences are punishable with rigorous imprisonment for a term
which shall not be less than 10 years which may extend to 20
years and shall also be liable to fine.

The investigation is
pending. In the event of his release he may tamper with the
prosecution witnesses. Incriminatory articles were seized from
his custody.

He may involve himself in similar offences.

Investigating agency by complying the provisions prevailed
under the act has seized the contraband from the petitioner.
The petitioner herein would sell the drugs to the younger
generation which may ruin the career of younger generation.
With these specific pleas sought to reject the bail plea of the
petitioner.
4. Heard learned counsel for the petitioner and the
prosecution.

4
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 Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:н The PSI of K.G Nagar PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:н
On 29.03.2022, at 2.00 p.m. when the complainant was
in the station he has received a credible information that at KG
Nagar Harihara gudda at Ganesha Park road junction two
persons in a two wheeler bearing No.KAн53 HFн8480 and other
two persons in Honda Fashion Pro No.KA.04 JVн0149 were
going to sell narcotics to the public. On noting the information
in the SHD he has informed the matter to DCP and obtained
5
CCHн33
Crl.Misc.11681/2022
search warrant to conduct raid. Thereafter, he along with staff
and panchas been to the spot at about 3.50 p,m and has
mounted surveillance in the area. He has noticed two persons
in one scooter and other two persons in another scooter were
found parking their scooters in the spot.

He has sent HC
10501 as a decoy to purchase drugs from the said unknown
persons. Decoy has signaled, immediately he along with staff
surrounded them and held the said 4 persons. On opening the
scooter dicky of scooter KAн53 HFн8480 small plastic covers
were found.

On opening the said covers MDMA weighing
23.89 grams, LSD weighing 0.56 grams, ecstasy tables
weighing 2.67 grams, 1100 grams of ganja were seized. A detail
mahazar was drawn in the spot. Accused were arrested and a
report is submitted before Station House Officer which is the
basis to register the case against the accused in Crime
No.39/2022 for the offences punishable under Sec. 22(c), 27A
of NDPS Act. Accused were produced before the Court and
remanded to JC. The Accused No.4 is the present petitioner.
On conclusion of investigation, investigating agency filed
charge sheet against the accused Nos.1 to 8. accused No.5 to
6
8 are shown as absconding. Now, after filing the charge sheet
the petitioner is moving the present bail petition contending
that the recovery alleged in the prosecution papers against this
petitioner is recovery of ganja which runs to 1 Kg., 100 grams
which is intermediate in nature and he is not apprehended
from the place of incident. Since the charge sheet is filed his
further detention is not warranted.
8. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were seized from his
custody. There are primaнfacie material available against him.

9. It is vehemently argued by the learned counsel for the
petitioner that petitioner is falsely implicated in the above case.
It is argued by the learned counsel for the petitioner that
petitioner herein is arrested on 26.3.2022.

He was illegally
detained and falsely implicated in the case. He has referred to
the order of Hon’ble High Court in Crl.Petition No.10576/2022
dated 22.11.2022. The Hon’ble High Court has granted bail to
CCHн33
Crl.Misc.11681/2022
7
the accused wherein there is an allegation of seizure of
commercial quantum of contraband.
I have carefully gone through the order.

The facts and
circumstances of the said case differs from the present case.
Therefore, the order of Hon’ble High Court of Karnataka
referred by the learned counsel for the petitioner with due
respect may not be made applicable to the present case.

10.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 23.83 grams of MDMA, 0.56 grams of LSD
papers, 2.67 grams of Ecstasy tablets, 1Kg., 100 grams of
ganja under the seizure panchanama. As per specification of
small
and
psychotropic
Department
commercial
substance
of
Revenue
quantity
issued
by
of
narcotic
Ministry
Notification
drug
of
S.O.1055(E)
or
Finance
dated
19.10.2001 at at Sl.No.134 the narcotic drug Ц MDMA
weighing 10 grams is a commercial quantity. In the present
case 23.83 grams of MDMA narcotic substance is seized which
is a commercial quantity. Likewise, as per Sl. No.133 Ц
8
narcotic drug Ц LSD weighing 0.1 gram is commercial quantity.
In the present case 0.56 grams of LSD seized is also
commercial quantity.

The investigating agency seized the
contraband from the join t possession of present petitioner and
other accused. The claim of petitioner that there is recovery of
1 Kg., 100 grams of ganja from his bag could not be entertain
ed as accused Nos.1 to 3 were apprehended together along
with the present petitioner and commercial quantity of
contraband is seized from accused Nos.1 and 2. The present
petitioner was present when there is seizure of commercial
quantity of contraband from accused No.1 and 2.
In the judgment of Hon’ble High Court of Karnataka in
Crl.Petition
No.5358/2015
State
of
Karnataka
Vs.,
D.B.Sandeepa dt.3.3.2016 has observed that mere filing of
charge sheet against persons accused of heinous offences
cannot be the reason to release them on bail. The trial courts
will have to keep in mind the guidelines issued by the Hon’ble
Apex Court from time to time for examining the nature in
gravity of the offences, severity of punishment in the event of
9
CCHн33
Crl.Misc.11681/2022
conviction, danger of absconding if released on bail, and facts
and circumstances in each case before granting bail to the
accused.

The Hon’ble High Court passed the order while
canceling the bail granted by the learned Sessions Judge.
Here in this case there is seizure of commercial quantity
of contraband from the joint possession of petitioner and other
accused.

Mere filing of charge sheet in a case of heinous
offence is not a ground to enlarge him on bail.

11.

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
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
10
under the provisions of NDPS Act. At paraн20 of the judgment
the Hon’ble Apex Court pleased to note that
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
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
12. 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
11
CCHн33
Crl.Misc.11681/2022
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.
(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.

12
In the recent judgment of Hon’ble Apex Court in the case
of State of Kerala Vs., Rajesh in (2020) 12 SCC 122 it is
observed that:н
Уreasonable groundsФ means something more than prima
facie grounds. It contemplates substantial probable causes
for believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on
hand, the High Court seems to have completely overlooked
the underlying object of Section 37 that in addition to the
limitations provided under the CrPC, or any other law for
the time being in force, regulating the grant of bail, its
liberal approach in the matter of bail under the NDPS Act is
indeed uncalled for.

Further the Hon’ble Apex Court in the case of State of
MP
Vs.,
Kajad
reported
in
2001(7)SCC
673
while
considering an appeal against an order of the High Court
allowing the second bail petition of the respondent who was
petitioner under the NDPS Act has held that :
“5. ………….. Negation of bail is the rule and its grant an
exception under subнclause (ii) of clause (b) of Section 37(1).

13
CCHн33
Crl.Misc.11681/2022
For granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable
grounds for believing that the petitioner is not guilty of the
offences with which he is charged and further that he is not
likely to commit any offence while on bail. It has further to be
noticed that the conditions for granting the bail, specified in
clause (b) of subнsection (1) of Section 37 are in addition to the
limitations provided under the Code of Criminal Procedure or
any other law for the time being in force regulating the grant
of bail. Liberal approach in the matter of bail under the Act is
uncalled for.Ф
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:н
“3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the petitioner is not
guilty of such offence and that he is not likely to commit any
offence while on bail alone will entitle him to a bail. In the
present case, the petitioner attempted to secure bail on
various grounds but failed. But those reasons would be
insignificant if we bear in mind the scope of Section 37(1)(b) of
the Act. At this stage of the case all that could be seen is
whether the statements made on behalf of the prosecution
witnesses, if believable, would result in conviction of the
petitioner or not. At this juncture, we cannot say that the
petitioner is not guilty of the offence if the allegations made in
14
the charge are established. Nor can we say that the evidence
having not been completely adduced before the Court that
there are no grounds to hold that he is not guilty of such
offence. The other aspect to be borne in mind is that the
liberty of a citizen has got to be balanced with the interest of
the society. In cases where narcotic drugs and psychotropic
substances are involved, the petitioner would indulge in
activities which are lethal to the society. Therefore, it would
certainly be in the interest of the society to keep such persons
behind bars during the pendency of the proceedings before
the court, and the validity of Section 37(1)(b) having been
upheld, we cannot take any other view.”
As per the enunciation of law in the afore said dictums’ it is
clear that no person shall be granted bail unless the two
conditions are satisfied, i.e., the satisfaction of the court that
there are reasonable grounds for believing that the petitioner
is not guilty and that he is not likely to commit any offence
while on bail. In this case, in all 23.83 grams of MDMA, 0.56
grams of LSD papers, 2.67 grams of Ecstasy tablets, 1Kg., 100
grams of ganja seized from the petitioner and accused No.1 to
3 herein. At this stage, there is primafacie material available
against the petitioner in regard to the possession of narcotic
drug. The learned counsel for petitioner has failed to place any
CCHн33
Crl.Misc.11681/2022
15
material before this court that he was not in possession of
NDPS article at the time of his apprehension and search. In
the result, I proceed to hold that the petitioner herein has not
made out any grounds to entertain his plea for bail.
Accordingly, I answer point No.1 in the negative.
13. Point No.2:н In the result, I proceed to pass following:
ORDER
The petition filed by the petitioner U/Sec.439 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 12th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.