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 22 nd DAY OF JULY 2022 Crl.Misc.No.7075/2022 Petitioner : Ansar Basha @ B.D. Basha, S/o (accused No.1) Basha, aged about 26 years, R/at Parvath nagar, Indlabele road, Attibele Town, Anekal Taluk. (By Sri L.H.P., Adv.) V/S. Respondent : State by Attibele PS (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioner to enlarge him on bail, in Cr.No.264/2022 of Attibele PS., registered for the offences punishable U/Sec.20(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 mandatory provisions U/s.50 of NDPS Act has not been complied. There are no eye witnesses who speak about the sale of alleged contraband. 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.
3. The objection raised by the prosecution is that the
investigating agency has seized 376 grams of ganja from the possession of petitioner herein. The petitioner is found to be in CCH-33 Crl.Misc.No.7075/2022 possession of narcotic drug. A detailed mahazar is drawn in the spot. Personal search is conducted. The offence alleged against the petitioner is punishable with rigorous imprisonment for a term which shall extend upto 1 year. There is a primafacie case available against the petitioner. He is an habitual drug dealer. 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 bail?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- A report submitted by PSI of Attibele
PSI., who is the complainant in this case. The contents of the report is as here under:- a) That on 05.07.2022 at about 2.00 Pm., when the complainant was in the station he has received a credible information that beside Hanumaiah Layout Road, Attibele Town, the accused persons were selling the contraband ganja illegally. On receipt of the information he has informed to his higher officer, obtained permission and thereafter, he along with his staff and panchas went to the spot and apprehended the accused. On personal search he has seized 376 grams of ganja. A detail seizure panchanama was drawn. Thereafter, he has prepared a detail report which is the basis to register the case against the accused in Cr.No.264/2022 for the offences punishable U/Sec.20(b) of N.D.P.S. Act.
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. 376 grams of ganja is seized from the CCH-33 Crl.Misc.No.7075/2022 possession of the petitioner is a small 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.
9. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable upto 1 year. Ganja seized from the possession of this petitioner is small quantity. 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 376 grams of ganja under the seizure panchanama. The petitioner is in judicial custody since the date of his arrest i.e., from 05.07.2022. On looking to the seizure panchanama the drugs seized is weighing 376 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 drugganja 1000 grams is small quantity and 20 Kgs., is commercial quantity. In this case the quantum of ganja seized is 376 grams which is a small 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 – Bail – grant of – non commercial quantity – quantity involved being only 14 Kgs., of ganja, which is a non commercial quantity appellant accused not involved in any other case – in above circumstances, held, appellant should be released on bail, pending trial – 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. What is the CCH-33 Crl.Misc.No.7075/2022 connecting link between the present petitioner and other accused no material produced at this stage.
11. Here in this case the drugs seized by the
investigating agency to the tune of 376 grams of ganja which is a small quantity. When the quantity is less than commercial quantity, rigors of Sec.37 of the 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 is not having previous criminal antecedents. He is not an habitual offender. The major portion of investigation in the case is concluded as the incriminatory article is already seized. The offence alleged against the petitioner is not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. 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, I answer the point for consideration in the affirmative.
12. 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 allowed. The petitioner is enlarged on bail on executing personal bond for a sum of Rs.50,000/- with one surety for the like sum with following conditions.
1. He shall not leave the jurisdiction of this court without prior permission.
2. He shall not tamper the witness or abscond.
3. He shall not commit similar offence or any offence while on bail.
4. He shall furnish his photo ID proof and photo ID proof of his sureties.
5. Breach of any of the conditions by the petitioner would entail cancellation of bail.
(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 22nd day of July 2022]. CCH-33 Crl.Misc.No.7075/2022 (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*