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 16th DAY OF JANUARY 2023
Crl. Misc.No.12175/2022
Petitioner :
(accused No.4)
Anand, S/o.Uday, 25 years, No.33/2,
4th Main, 11th Cross, Bapujinagar,
Vijayanagr, Bangalore.
(By Sri.VK, Adv.)
V/S.

Respondent :
State by Mahalakshmipuram 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.233/2022 for the
offence punishable U/Sec. 20(b) of N.D.P.S. Act.

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. There is no eye witness to say
that the petitioner was in actual physical possession of the
contraband. The statement of the petitioner has been drawn
as per the whims and fancy of the respondent. Petitioner is
the only bread earner of his family. There is no other person to
look after his family.

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 194 Kgs., of ganja from the
accused persons which is a commercial quantity. There are
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CCHн33
Crl.Misc.12175/2022
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
completed. 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.
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?

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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 Mahalakshmilayout PS., has
put the criminal law into motion.

The gist of the allegation
reads as here under:н
On
01/12/2022
at
about
3.30
p.m.,
when
the
complainant and his staff were on patrolling duty within the
limits of respondent police station, at Kamalammana Gundi
play ground, Mahalakshmi Layout, Bengaluru two persons
were standing with the travelers bag near the said play ground,
on seeing the police they tried to run away from the spot. They
were apprehended. On enquiry they have revealed their names
as
Dudisti,
Manikumar
of
Ittapura
Mandalam,
Andhra
Pradesh. When they were questioned about the contents of the
bag they have revealed that they are in possession of ganja.
They have purchased ganja from a person of Vishakapatnam
and they are selling the same at Bangalore for Rs.4000/н per
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CCHн33
Crl.Misc.12175/2022
100 gram and Rs.40,000/н per KG. Prior to this they have sold
the ganja to one Hoova of Bangalore. They came there to sell
ganja to Hoova on that day. When the bag was opened it was
containing bundles draped with khaki tapes. The said covers
were opened and it is containing ganja. The entire quantum of
ganja was weighed.

The total weight of the ganja is 8 Kgs.

Thereafter, a detail seizure panchanama was drawn. A detail
report was prepared and submitted before SHO which is the
basis to register the case in Cr.No.233/2022 against the
present petitioners and one Hoova for the offence punishable
U/s.20(B) of NDPS Act.

Thereafter they were arrested and
produced before jurisdictional Magistrate and were remanded
to JC.

The petitioners herein are Accused Nos.1 & 2 in the
case.

The petitioners herein were interrogated by the
investigating agency.

During their voluntary statement they
have stated that they have sold ganja on whole sale price to
accused No.3 Hoova and one Ananda.

About a month back
the said Ananda of Bangalore came to Vishakapatnam and
purchased 200 Kgs., of ganja on wholesale price i.e.,
Rs.8000/н per Kg. Now they are not in possession of any ganja
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and they have sold the entire quantum to one Ananda. The
PSI who is the search and seizing officer has assigned the staff
to apprehend accused Nos.3 Hoova and one Ananda.

On
5.12.2022 at 3.00 pm., accused No.4/present petitioner was
apprehended at his house situated at 4 th main, 11th Cross,
Bapujinagar, Vijayanagar, Bangalore.

On enquiry he has
stated that he has purchased ganja from accused Nos.1 and 2
and has stored it in his house. He has shown the ganja which
was hidden in the house to the police.

The said ganja was
kept in 11 bags. It was weighed. The weight came around 186
Kgs. He was arrested, brought to PS., his statement came to
be recorded. He is produced before the court and remanded to
Judicial Custody. Accused No.3 Hoova @ Manjunatha is not
secured yet by the investigating agency. The present petitioner
is accused No.4 in the case.
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.50 of the Act are
CCHн33
Crl.Misc.12175/2022
7
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. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 20 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
186
Kgs.,
of
ganja
under
the
seizure
panchanama from the house of accused No.4 on 5.12.2022.
On looking to the seizure panchanama the drugs seized is
weighing 186 Kgs., 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 grams is small quantity and 20
Kgs., is commercial quantity. In this case the quantum of
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ganja seized from accused No.4 alone is 186 Kgs., which is a
commercial quantity.
11. On looking to the prosecution papers the quantum
of narcotic substance seized 186 Kgs., of Ganja. 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.104153/2021 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
the 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
CCHн33
Crl.Misc.12175/2022
9
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 nonнapplication 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.

10
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.
(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 coнaccused.

By making a detail observation in granting the bail to the
accused held to be 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
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CCHн33
Crl.Misc.12175/2022
be considered and has to be evaluated by the court to consider
the bail plea of the accused.
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
Уreasonable groundsФ means something more than
primafacie 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 in the judgment of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001 (7) SCC
673 has held that :
12
“5. ………….. Negation of bail is the rule and its grant an
exception under subнclause (ii) of clause (b) of Section 37(1).
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 are not guilty of the
offences with which they are charged and further that they
are 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 are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them 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 are not guilty of the offence if the allegations made
in 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 they are not
13
CCHн33
Crl.Misc.12175/2022
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
are not guilty and that he is not likely to commit any offence
while on bail.

Here in the present case the petitioner was
apprehended and 186 Kgs., of ganja was seized from the his
house. The quantity of the contraband is commercial quantity.
At this stage, there are primaнfacie materials available against
the petitioner in regard to the possession of narcotic drug. 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.

12. Point No.2:н In the result, I proceed to pass following:
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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 16th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.