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 6th DAY OF DECEMBER 2022
Crl. Misc.No.11471/2022
Petitioner :
(accused No.6)
Anandu Muruli @ Ananthu Murali,
S/o.Muraleedharan.T, a/a 22 years,
R/at Aiswarya, Kanjoor Village,
Cheppadi Post, Albunja, Keralaн
690507
(By Sri Ramesh.D.S, Adv.)
V/S.

Respondent :
State by Soladevanahalli Police
Station
(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.92/2022
of Soladevanahalli PS., registered for the offences punishable
U/Sec.20(b), 20(b) (i), 22(c) 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. There is no connection or active part played
by this petitioner. Petitioner is the only son to his parents.
There is no recovery from the present petitioner. As per the
prosecution they have seized the drugs from the house of
petitioner. Petitioner is permanent resident in the address as
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 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1,188 grams from the accused.

The weed oil
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CCHн33
Crl.Misc.11471/2022
seized is a commercial quantity. There are sufficient materials
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.
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?

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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 PI, Soladevanahalli PS., Bangalore
has put the criminal law into motion. The gist of the allegation
reads as here under:н
On 11.5.2022 at about 11.00 am., when the complainant
was in the station he has received credible information that at
near Chikkabanavara Railway Parallel road some persons are
selling weed oil and ganja to the public. He has informed the
matter to ACP and obtained permission to conduct raid. He
has called the panchas.

He has been to the spot and
apprehended 2 persons. On enquiry they revealed their names
and addresses. They are on Subin Binoy and Mohammed Irfan
that is accused No.1 and 3 herein.

Asst. Commissioner of
Police was called to the spot to conduct personal search.

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CCHн33
Crl.Misc.11471/2022
During personal search of A1 and 3, 10 grams of ganja in 10
packets and 8 to 10 grams of weed oil in 12 plastic pockets
were found after seizing the contraband and on enquiring them
they have stated that they are R/at Flat No.1016, 10 floor of
Desire Apartment they are staying along with one Sojin, Kiran
Kumar, Anandu Murali and Mohammed Shiyas that is accused
Nos.4 to 7. The accused No.1 and 3 were selling ganja and
weed oil along with other accused at the instance of accused 1
and 3 search was conducted in flat No.1016 of Desire
Apartment. In the said apartment accused no.4 to 7 were
found. During the house search 1580 grams of ganja, 1 Kg.,
960 grams of weed oil 1188 grams of weed oil, 1 weighing
machine, vessels were found.

The said articles were seized
under Panchanama. Accused Nos.1, 3 to 7 were arrested.
Thereafter, basing on the report of raiding officer, a case in
crime No.92/2022 is registered against against accused No.1
to 7 for the offences punishable U/sec. 20(b), 20(b) (i), 22(c) of
N.D.P.S. Act. The present petitioner is accused No.6.

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8. It is vehemently argued by the learned counsel for the
petitioner that petitioner is falsely implicated in the said case.
There is no seizure from the present petitioner.

Custodial
interrogation is not warranted. He is entitled for bail.

9. 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.

The
learned
counsel
for
the
petitioner
vehemently argued that there is non compliance of Sec.42 of
NDPS Act. The search and seizure is not in accordance with
law.
10. Herein this court is considering the bail plea of the
petitioner on the primafacie materials placed on record by the
prosecution. The contention of the accused that he was falsely
implanted and and he was not in conscious possession and
CCHн33
Crl.Misc.11471/2022
7
further the requirements of statute particularly Sec.42 has not
been complied cannot be appreciated at this stage.

In the
instant case the petitioner along with other accused was
apprehended with huge quantum of contraband in an
apartment when all the accused were together, that he is in no
way connected to the seizure of contraband could not be
entertained.
11. On looking to the prosecution papers the quantum
of narcotic substance seized is 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1,188 grams.

As per specification of small and
commercial
narcotic
quantity
of
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 Ц Ganja weighing 1000 grams is small
quantity and 20 Kgs., is a commercial quantity. Likewise, at
Sl.No.23 the narcotic drug Ц weed oil/ganja oil weighing 1 Kg.,
is a commercial quantity.

In the present case 1 Kg., 580
grams of Ganja, 1 Kg., 960 grams of Weed oil/ganja oil and
8
154 weed oil filed boxes in all 1,188 grams which is
commercial quantity. Further more the petitioner herein was
apprehended
along
with
accused
No.4
to
6
with
the
contraband in the apartment. Their voluntary statement is
recorded. Huge quantum of contraband is in their conscious
possession.
12. It is well settled principle of law that while considering the
bail plea of the accused this court has to appreciate the nature
and gravity of allegations made against the accused, severity of
punishment, danger of absconding if released on bail, criminal
antecedents and the facts and circumstances in each case has
to be appreciated carefully while entertaining the bail plea of
each one of the accused. The Hon’ble Apex Court in the recent
judgment in the case of State of Kerala Vs., Mahesh in Crl.
Appeal
No.343/2021,
19.3.2021
(SLP.Cr.No.1530/2021)
dated
has cautioned the courts against mechanically
granted bail in heinous offenses, saying the seriousness of the
charge is a basic consideration before setting an accused free
on trial.

The Hon’ble Apex Court while setting aside the order
9
CCHн33
Crl.Misc.11471/2022
of Kerala High court bailing out a man accused of stabbing to
death a 30 years old dentist in front of her father in September
2020 and in the said case accused had gone absconding for
several days before his arrest. Though the trial court denied
him bail, the Hon’ble High Court set him at liberty.

The
Hon’ble Apex Court observed that the nature of offence is one
of the basic considerations for the grant of bail more heinous is
the crime, the greater is the chance of rejection of the bail,
though, however, depending on the factual matrix of the
matter.

While granting the bail court has to keep in mind not
only the nature of accusation, but the severity of the
punishment. Other criteria include reasonable apprehensions
of influence witnesses or tampering of evidence.

It is also
observed that grant of bail is a judges discretion however, calls
for exercise of such a discretion in a judicious manner and not
as a matter of course. Order of bail bereft of any cogent reason
cannot be sustained.

13. Further in another judgment of Hon’ble High Court
of Karnataka in a case Crl.Petition No.5358/2015 State of
10
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 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.

14.

In the recent judgment of Hon’ble High Court of
Karnataka in the case of Vinay Rajashekarappa Kulkarni
Vs., CBI in Crl.Petition No.2601/2021 dated 24.5.2021
while rejecting the bail plea of the accused for the offence
U./s.302 R/w.Sec.120 (B) of IPC., the Hon’ble High Court
made an observation that even if there is no primafacie
material available on record against the accused, the gravity of
offence and severity of the punishment, character, behaviour
and standing of the accused, reasonable apprehension of the
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CCHн33
Crl.Misc.11471/2022
witnesses being tampered with has to be considering by
making a detailed observations on the facts of the said case
has rejected the bail plea of petitioner.
15.

Before granting bail the court should evaluate if
there is reasonable apprehension of accused tampering the
evidence or threatening the complainant.

The Hon’ble Apex
Court reemphasized on the parameters for granting bail to the
accused, while quashing the bail granted to an accused
charged with carrying out supari killing of a person in the case
Ashiyana PS., of UP, Lucknow district.

16. The accused involved in heinous offence should not
be granted bail arbitrarily. As various factors like the
propensity to tamper with evidence and the plausibility of
escape should be considered before the relief is given.

The
Hon’ble Apex Court chided the order of Hon’ble Apex Court of
Calcutta in granting the bail to accused who is an accused in a
murder case.

12
17.

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 conviction, danger of absconding if
released on bail, and facts and circumstances in each case
before granting bail to the accused.

18.

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
under the provisions of NDPS Act. At paraн20 of the judgment
the Hon’ble Apex Court pleased to note that:н
13
CCHн33
Crl.Misc.11471/2022
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
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
14
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.

19. 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 is incorrect and has set aside the impugned order.

CCHн33
Crl.Misc.11471/2022
15
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.

20.

As per the enunciation of law in the aforesaid
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.

Herein the present case the
petitioner was apprehended and 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1188 grams was seized from the apartment of
petitioner
and
possession.

other
accused
and
also
from
physical
The accused No.1 & 3 have shown Mahaveer
desire Apartment to the investigating agency and there huge
quantum of contraband seized along with other incriminatory
material.

The other accused were also apprehended at the
instance of accused Nos.1 and 3. The quantity of the
16
contraband is commercial quantity.

At this stage, there are
primafacie materials available against the petitioner in regard
to the possession of narcotic drug which is commercial
quantity. The final report filed by the police indicates that the
petitioner is in conscious possession of commercial quantity of
contraband. 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.

14. 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 6th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*