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 14th DAY OF SEPTEMBER 2022
Crl. Misc.No.8848/2022
Petitioner :
(accused No.3)
Appu A @ Pune, s/o.Late Muniraju,
29 years, No.272, 8th Cross, In front
of One Ayya’s House, Behind church,
Near Muneshwara Temple, Rupena
Agrahara, MGR layout,
Bommanahalli, Bangalore 68.
(By Sri SK, Adv.)
V/S.

Respondent :
State by Bommanahalli 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.170/2022 of
Bommanahalli PS, registered for the offences punishable
U/Sec.20(B)(ii)(c) & 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. Police have seized 1.130 Kgs., of ganja
from the present petitioner which is below commercial
quantity.

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. I 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 I.O has seized 12 grams of MDMA and 1
Kgs., 130 grams of ganja.

MDMA seized is a commercial
quantity. There are sufficient material available against the
3
CCHн33
Crl.Misc.8848/2022
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?
2. What order?

4
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 first informant in the case is the
police
constable
27.8.2022
when
of
the
Bommanahalli
police
station.

On
complainant
police
constable
was
assigned with a duty to trace the persons who were doing illicit
trafficking of drugs along with other police constables.

At
about 1.15 pm., when he was on patrolling duty behind APR
Spirit Zone, On Bhanu Nursing Home at Bommanahalli,
he
has received credible information that some three unknown
persons were arriving to the said spot around 3.30 pm., to sell
the contraband. The said informant has stated further that on
26.8.2022 the said three unknown persons came to the spot to
sell the contraband and they were in the spot upto 4.30 pm.
The said three unknown persons would again visit the spot on
the next day.

On receipt of the said information the police
constable who was on patrolling duty came back to the police
station and submitted a detail report about the information he
5
CCHн33
Crl.Misc.8848/2022
has received before the Station House officer, basing on the
said report case in Cr.No.170/2022 is registered against
unknown persons for the offence punishable U/s.20(b) of
NDPS Act.

The PSI of the said police station had formed a
raiding team, he along with team and staff had been to the
spot on 27.8.2022 at about 4.20 pm., and conducted raid.
Accused No.1 was apprehended and accused Nos.2 and 3 have
absconded from the place. On conducting personal search of
accused No.1, 12 grams of MDMA was seized.

The accused
Nos.2 and 3 were accompanying accused No.1 on 27.8.2022
and according to the investigation papers when accused No.1
was apprehended accused Nos.2 and 3 ran away from the
place. The detail addresses of accused Nos.2 and 3 is stated in
the report submitted by the investigating officer.
The accused No.1 was arrested on 27.8.2022 and 12
grams of MDMA is seized from him. Accused Nos.2 and 3 were
arrested on 28.8.2022 and at their instance 1 Kgs., 130 grams
of ganja is seized. As per the report of investigating agency,
accused Nos.1 to 3 have assembled in the place of incident on
27.8.2022. But when the police officials surrounded them,
6
accused Nos.2 and 3 fled away from the place.

The total
quantum of contraband seized in the case is 12 grams of
MDMA and 1 Kg., 130 grams of ganja. Therefore, when they
were together they were found in possession of contraband.
The contraband seized from accused No.1 is 12 grams of
MDMA and the contraband seized from accused No.3 is 1 Kg.,
130 grams of ganja.

The said contraband seized has to be
taken together to consider the actual seizure in the case and
as per the report of investigating agency accused Nos.1 to 3
were doing the trade of drug.
On 28.8.2022 basing a information of accused Nos.1,
accused No.2
and accused No.3 were apprehended.

At the
instance of accused No.3, 1 Kg., 130 grams of ganja was
seized.

Accused Nos. 1 to 3 were arrested.

Their voluntary
statement came to be recorded. They were produced before the
court and remanded to judicial custody.

The present
petitioner is accused No.3 in the case.
8. The prosecution affirms that the accused herein are
drug peddlers.

They are not entitled for bail.

As against
CCHн33
Crl.Misc.8848/2022
7
accused
No.3
several
cases
Bommanahalli police station.
commercial
quantity.

The
are
pending
before
the
The contraband seized is a
offence
is
punishable
with
imprisonment not less than 20 years and are non bailable. In
the event of grant of bail he may abscond and may hamper the
investigation and trial.
9. The contention of the petitioner herein is the quantum
of ganja seized from him is an intermediate quantity. He has
been falsely implanted in the case.

He is not having any
criminal antecedents. In the event of grant of bail he would coн
operate with the investigating agency and would abide by the
conditions which are going to be imposed by this court.

10.

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
8
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
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
9
CCHн33
Crl.Misc.8848/2022
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
11. 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 coн
accused.

By making a detail observation in granting the bail to the
accused held to be incorrect and has set aside the impugned
order.

10
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.
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 :
11
CCHн33
Crl.Misc.8848/2022
“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 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
the charge are established. Nor can we say that the evidence
12
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, 12 grams of MDMA and 1 Kg., 130
grams of ganja is seized from the accused No.1 and petitioner
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
material before this court that he was not in possession of
13
CCHн33
Crl.Misc.8848/2022
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.
12. 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 14th day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*