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 20th DAY OF OCTOBER 2023
Crl. Misc.No.8290/2023
Aneesh P D S/o Devasia,
Aged 32 Years, R/at Pulichamakkal,
Madackal, Payyavoor, Kannur,kerala670633
(By Sri Binu M, Adv.)
Petitioner :
(accused.4)
V/S.
State by NCB., Bangalore
Respondent :
(By Spl. Public Prosecutor)
ORDER
This is the 3rd bail petition U/Sec.439 of Cr.P.C. filed by
the
petitioner
to
enlarge
him
on
bail,
in
NCB.F
No.48/1/18/2020/BZU (Spl.C.C.662/2021) for the offences
punishable U/Sec.8(c), 20(b)(ii)(c), 27A, 28 & 29 of N.D.P.S.
Act.
2. The prevalent grounds urged seeking bail:-
2
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 respondent has not followed the
standing instructions 1/88 dated 15.3.1988 of NCB, GOI,
prescribed detailed procedure for sampling, sealing and
dispatching the seized samples to the laboratory for test. The
trial in the case is not yet commenced. Petitioner is in judicial
custody for the past 1 year 6 months. The provisions of Sec.50
is not complied. No document produced by IO., NCB to prove
that they had informed the accused about their right of being
searched before the gazetted officer or the nearest Magistrate.
The information has not been entered in the diary maintained
in the police station. The information received on 9.11.2020
around 9.45 am., it is mandatory for an IO., to get an FIR
registered
if
the
information
discloses
commission
of
cognizable offence and no preliminary enquiry is permissible in
such a situation. The complainant IO., NCB had complied the
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CCH-33
Crl.Misc.8290/2023
same around 3.45 pm., after lapse of 6 hours of receipt of
information about cognizable offence. No CC TV footage was
produced by the complainant to show that they had conducted
search and seizure in a prescribed manner. Now, the
investigation is concluded and charge sheet is filed, accused is
not required for further investigation.
Further detention of
accused would amount to inflicting pre-trial punishment. 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. The prosecution while opposing the bail petition
contended that the seizure of contraband to the tune of 3 Kgs.,
of Hashish oil is effected from the conscious possession of the
present petitioner and A1 & 3. the seizure was made before
independent witnesses. The accused Nos.1 & 3 and the
present petitioner went to Vishakapatnam in Hundai car
bearing No.KL 01 AZ 0077 and collected 3 Kgs., of Hashish oil
4
from A5 and kept under the driver seat of the car, and when
the vehicle was intercepted by the IO., NCB at Devanahalli
Tollgate the concealed contraband to the tune of 3 Kgs.,
Hashish oil is recovered.
The present petitioner and other
accused have stated in their statement about their knowledge
of drug trafficking and after the seized contraband.
The
petitioner herein is a consumer of drug since 2015 and he is
selling drugs to the customers to gain money. He had visited
Vishakapatnam on 3-4 occasions prior to this case for
purchase of drugs and had visited Vishakapatnam in between
October-November 2020 along with accused No.1 and 3 for the
purpose of purchasing ganja and hashish oil and purchased 3
Kgs., of Hashish oil which was seized on 9.11.2020. further,
in the statement of A5 he has stated that he had supplied 3
Kgs., of Hashish at Vishakapatnam between X Kota and
Vishakapatnam near SBM ATM on 7.11.2020. after collecting
the said contraband accused Nos.1 to 3 came in the car stated
above and they were intercepted by the IO., NCB at
Devanahalli Toll gate, Bangalore on 9.11.2020.
the present
petitioner is prosecuted in another NDPS case of MICO layout
CCH-33
Crl.Misc.8290/2023
5
police station in Cr.No.46/2016.
He is having criminal
antecedents. He is not a permanent resident of Bangalore and
he is native of Pulichamakkal, Madackal Pallyavoor, Kannur,
Kerala.
The seized contraband is a commercial quantity of
drug and there is a statutory embargo for grant of bail as per
Sec.37 of NDPS Act.
There are sufficient material available
against the petitioner, and the said offences alleged against the
petitioner 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. 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.
6
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 Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- The IO., NCB., has put the criminal law
into motion. The gist of the allegation reads as here under:When the complainant IO., NCB was in his office on
9.11.2020 at 9.45 am., received credible information that
around 1.00 to 2.00 pm., a person namely Ranjith going to
cross Devanahalli toll gate, Bengaluru in Hyundai car bearing
No.KL 01 AZ 77 along with two other persons carrying
CCH-33
Crl.Misc.8290/2023
7
substantial quantity of hashish oil. After obtaining the
permission of superintendent they along with panchas had
been to the spot, mounted surveillance. Around 1.30 pm., the
vehicle with above description entered Devanahalli toll gate.
When the IO., NCB intercepted the vehicle there were two
persons along with a driver. On enquiring them the driver told
his name as Ranjith and other two persons revealed their
names as Aneesh and Sarang. They are accused Nos.1 to 3
herein. They have stated that they are residents of Kozikod,
Kerala. They have further stated that they are carrying drugs
with them containing hashish oil in three packets. When the
car was searched a wrapped packet was found beneath the
seat of the driver. On opening the packet there is dark brown
colour vicious liquid. When a pinch of it tested with DD kit it
gave positive result for hashish.
Thereafter, the contraband
was seized under the mahazar.
Summons was served upon
the accused. Their statement came to be recorded. On having
reasonable belief of accused carrying the contraband they were
arrested
for
commission
of
offence
punishable
U/s.8(c)
8
R/w.Sec.22(a), (b), (c), 27, 27A, 28 and 29 of N.D.P.S. Act. The
present petitioner is accused No.2 in the case.
During the voluntary statement of accused No.1 to 3 they
have revealed that the accused No.5 has supplied hashish oil
to them. Further, the A5 has identified accused Nos.1 to 3 as
they came and collected hashish oil from him at Karakul
Market area in the first week of November 2020.
Basing on the voluntary statement of accused Nos.1 to 3
when the IO., NCB probed the matter further, they came to
know that the supplier of contraband i.e, the present petitioner
is in judicial custody in sunabeda Police Station in Koraput
Odissa Jail in FIR No.20/21 of Odissa state. By submitting a
requisition before this court they have secured body warrant.
Body warrant was executed, accused No.5 is produced before
this court. IO., has sought custody of accused. He was given
to IO custody.
His statement recorded.
Thereafter, he was
sent back to Koraput jail, Odissa. In the said statement A5
has stated that he is doing drug trafficking with other accused.
He has supplied three Kgs., of hashish oil to the accused Nos.1
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CCH-33
Crl.Misc.8290/2023
to 3. He is prosecuted in another NDPS case of Sunabeda PS.,
Koraput, Odissa.
8. It is argued by the prosecution that the petitioner has
committed heinous offence and it is punishable with RI upto
20 years. The petitioner may involve in similar offence, if he is
released on bail.
There are prima-facie material available
against him. In the event of his release he may abscond and
may repeat the crime and there is every possibility of
absconding of the petitioner.
There are prima-facie material
available against him.
9. It is vehemently argued by the learned counsel for the
petitioner that search and seizure are vitiated by inherent
procedural impropriety. The mandatory provisions of law have
not been followed thereby causing serious doubt on the
investigation, search and seizure procedure.
He is no way
connected to the drugs which were seized in the case. Now,
investigation is completed and complaint has been submitted.
Further custodial interrogation is not warranted. He is entitled
for bail.
In support of his argument he has referred to the
10
order of Hon’ble Apex Court
in Crl.Appeal No.1570/2021
dt.7.12.2021 Mahammud Kurdeya Vs., NCB. In the said case
the Hon’ble Apex Court granted bail to the accused/appellant
on the ground that he has been in custody for 3 years 3
months and the manufacturer who has sold the drugs to the
accused has been granted bail. In the said case Tramadol X Ц
225 tablets were seized and the allegation against the
appellant is he is a carrier of 50 Kgs., of the aforesaid drug.
I have carefully gone through the order. In the case on hand
the complaint is filed by the IO., on conclusion of investigation
on 5.5.2021. This court had taken cognizance of the charges
alleged against the accused in the complaint. In the complaint
accused Nos.1, 2 & 4 are shown in judicial custody and A3 is
shown as enlarged on bail and A5 is absconding. After filing of
complaint accused No.4 who had obtained bail in the matter
before the Hon’ble High Court remained absent. A3 who had
obtained bail also remained absent. Repeated NBW issued
against them. Non bailable warrant issued against absconding
accused No.5. Thereafter, A5 is secured under body warrant.
The accused Nos.3 and 4 remained absent on several hearing
11
CCH-33
Crl.Misc.8290/2023
dates. The case against accused No.3 came to be split up on
17.3.3023. the accused who have obtained bail i.e., accused
Nos.4 and 5 have filed exemption applications and are not
appeared on the subsequent hearing dates. A1 had filed bail
application on medical grounds and he has been granted
interim bail. He is also not appearing before this court. As the
matter is posted for framing charge one or the accused
remaining absent and the accused who is on medical bail has
not at all appeared before the court, therefore, charge could
not be framed against the accused. There is no delay on the
part of this court in proceeding with the trial of this case.
Though the matter is posted for framing charge the accused
who is on medical bail is not appearing before the court due to
his illness. Thus, the contention raised by the petitioner that
there is delay in trial is due to the absence of the accused
consistently before the court and this court has not given any
unnecessary adjournment for framing the charge. The order
referred to by the learned counsel for the petitioner would not
assist his case in any manner as the accused No.1 represented
by the very same counsel is not appearing before the court as
12
he has obtained interim bail. Further, learned counsel for the
present petitioner as well as A1 has filed extension of bail to A1
again on medical bail.
He has referred to the order of Hon’ble Apex Court in the
case
of
State
of
Kerala
Vs.,
Raneef
in
Crl.Appeal
No.3/2011 dated 3.1.2011, Union of India Vs., KA Najeeb
Crl.Appeal No.98/2021 dated 1.2.2021. In the judgments
of Hon’ble Apex Court in the case of Raneef and KA Najeeb the
Hon’ble Apex Court
had discussed about the delay in
concluded the trial and the rights of the under trial under
Article 21 of Constitution.
In the case on hand the case is
stood for framing charges but due to the absence of the
accused which is stated by me in the aforesaid paragraphs
there is delay in trial.
It is also the duty of the defence on
obtaining bail to appear before the court to face trail. While
granting the bail conditions are imposed for their due
appearance for trial. But due to the absence of the accused on
the hearing dates, the charge could not be framed, particularly
A1 on health ground is not appearing before this court and on
all the dates exemption application is filed by the learned
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CCH-33
Crl.Misc.8290/2023
counsel for accused. When accused themselves are delaying
the process of law on remaining absent, they cannot take up a
contention that there is delay in the matter. Therefore, with
due respect the case laws referred to by the learned counsel for
the petitioner would not be made applicable to the present
petitioner as he has been apprehended when he was conscious
possession of commercial quantity of contraband along with
accused Nos.1 and 3.
He has referred to the order of Hon’ble High Court of
Himachal Pradesh in the case of Tahal Singh Vs., State of HP
Crl.Misc.Petition 251/2022 dated.28.2.2022.
Hon’ble High
Court of Punjab and Harayana in Crl.Misc,.17503/2020 dated
17.3.2022 Gurpreet Singh Vs., State of Punjab and Harayana.
I have carefully gone through the orders. In the said cases the
Hon’ble High Courts have granted bail to the accused on the
ground that there would be delay in trial and by referring to
the order of Hon’ble Apex Court the accused who are
prosecuted for carrying commercial quantity of contraband
were granted bail.
On going through the facts and the
14
circumstances in the said case I feel the said orders referred to
by the petitioner would not be of any assistance as the facts
and circumstances in the present case is different for the detail
reasons given by me in the aforesaid paras.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 3 Kgs., of Hashish oil from accused. under the
seizure panchanama. 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 at
Sl.No.134 the narcotic drug Ц Hashish weighing 1 Kg., is a
commercial quantity. In the present case complainant has
seized 3 Kgs., of Hashish oil from the present petitioner and
accused Nos.1 & 3 which is a commercial quantity. The A5 is
the supplier of hashish oil.
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
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CCH-33
Crl.Misc.8290/2023
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 para-20 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 drugtrafficking 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
16
two-judge 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 nonapplication 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
that it is a question of fact. Further, at Para-30 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 co-accused;
(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;
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CCH-33
Crl.Misc.8290/2023
(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 coaccused.
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.
13. 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
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 Cr.P.C, or any
other law for the time being in force, regulating the
18
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
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 sub-clause (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 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 subsection (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 recent judgment of NCB V/s Mohit Agarwal in
Crl.A.1001-1002 of 2022, dated 19.07.2022 in the said case
the appellant NCB being aggrieved by the order of post arrest
grant of bail to the accused by the HonТble High Court of Delhi
CCH-33
Crl.Misc.8290/2023
19
has impugned order of bail before the HonТble Apex Court. In
the said case HonТble Apex court on appreciating the various
parameters of grant of bail at para 18 of the order has
observed has hereunder:
In our opinion the narrow parameters of bail available
under Section 37 of the Act, have not been satisfied in the
facts of the instant case. At this stage, it is not safe to
conclude
that
the
respondent
has
successfully
demonstrated that there are reasonable grounds to believe
that he is not guilty of the offence alleged against him, for
him to have been admitted to bail. The length of the period
of his custody or the fact that the charge-sheet has been
filed and the trial has commenced are by themselves not
considerations that can be treated as persuasive grounds
for granting relief to the respondent under Section 37 of the
NDPS Act.
In the said case accused is prosecuted for the offences
punishable U/s.8, 22 and 29 of NDPS Act. Accused No.1 and 2
were apprehended and 20 Kgs of Tramadol tablets were seized.
During follow up action basing on the disclosure statement,
raiding team proceeded to the godown of pramod jaipuria and
conducted a search during which a cache of drugs covered
under the NDPS Act, were recovered. The said drugs included
20
6,64,940 tablets of different psychotropic substances including
Tramadol, Zolpidem and Alprazolam tablets/capsules weighing
around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4
ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900
tablets weighing 990 gms., were recovered during the search
conducted by the NCB officials at the premises of the coaccused, Manoj Kumar at Ludhiana. In the said case the
accused has been granted bail by HonТble High Court which
has been held to be incorrect it is observed further that the
length of the period of custody of a accused or the fact that the
charge sheet has been filed and the trial has commenced are
by themselves not considerations that can be treated as
persuasive grounds for granting relief to the respondent
under Section 37 of the NDPS Act.
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:”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
21
CCH-33
Crl.Misc.8290/2023
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 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.
The final report submitted before the court
against the accused herein primafacie indicates his serious
involvement in drug peddling. There is no material placed on
22
record by the learned counsel for the petitioner that the
petitioner is no way connected to the crime. In the result, I
proceed to hold that the petitioner herein has not made out
addl., grounds to entertain his plea for bail. Accordingly, I
answer point No.1 in the Negative.
13. Point No.2:- 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 20th day of October 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*
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