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 30th DAY OF JANUARY, 2023
Crl. Misc.No.528/2023
petitioner :
(accused No.1 & 2)
1. Ashfak, S/o.late Ramulla,
Aged about 38 years, R/at Prabhu
P.G, 3rd Cross, Behind Ambedkar
Bhavan, Jai Bheem Nagar,
Madivala, Bengaluruн560 068.
2. Shifas P.
S/o.Mohammed
Aged about 28 years,
R/at No.221, 9th СAТ Main,
HBR Layout, Kalyannagar,
Bengaluru.
(Accused No.1 & 2 in J.C.)
(By Sri.Nataraju.T.Adv.)
V/S.

Respondent :
State of Karnataka by SHO, Begur
Police
(By Public Prosecutor)
2
ORDER
This the second bail petition U/Sec.439 of Cr.P.C., filed
by the petitioners to enlarge them on bail, in Cr.No.198/2022
and Spl CC.35/2023 for the offences punishable U/Sec. 8(c),
21(c), 22(c) of N.D.P.S and 14 of Foreigners Act.
2. The prevalent grounds urged seeking bail:н
That the petitioners are very innocent and law abiding
citizens. They have not committed any offence much less the
offence as alleged.

They have 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. Investigation is completed and
charge sheet has been filed.

The petitioners are ready and
willing to abide by any conditions imposed by this court in the
event of grant of bail. They are ready to offer surety for their
due appearance before this court. Hence, sought to grant bail.

CCHн33
Crl.Misc.No.528/2023
3
3. The prosecution while opposing the bail petition
contended that the I.O has seized 2,060 grams of Hashish Oil,
57 grams of MDMA from the conscious possession of A1 to A3
which is a commercial quantity at the instance of presence
petitioners 2Kgs 60 grams of Hashish Oil. There are sufficient
material available against the petitioners, 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. In the event of their release
they
may
tamper
with
the
prosecution
Incriminatory articles were seized from their
may involve themselves in similar offences.

witnesses.

custody.

They
Investigating
agency by complying the provisions prevailed under the act
has seized the contraband from the petitioners. The petitioners
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 petitioners.

4. Heard learned counsel for the petitioner and the
prosecution.

4
5. The points that arise for my consideration are as here
under:
1. Whether petitioners have made out
sufficient grounds to enlarge them on
bail?
2. What order?

6. My answer to 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 SHO, Begur PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:н
On
29.7.2022
at
about
18.00
hours
when
the
complainant was in the police station he has received credible
information that two persons on a two wheeler came behind
Hyper market, Koppa road, Begur and sold hashish oil to the
public and they will come again to the spot since they have
customers to purchase. The complainant registered a suoнmoto
5
CCHн33
Crl.Misc.No.528/2023
complaint in Crime No.198/2022 registered against unknown
persons for the offences punishable under Sec. 8(c), 21(c),
22(c) of NDPS Act. On 31.7.2022 on confirming about the
information the complainant along with staff and panchas
went to the spot and apprehended two persons. On enquiry
they revealed their names and addresses. Thereafter on
personal search he has seized Hashish Oil weighing 1 Kg., 170
grams, cash, school bags, weighing machine, plastic covers
etc. Detailed mahazar is drawn in the spot, report is prepared
and submitted before the Station House officer. The petitioner
No.1 herein was taken to police custody. In the PG bedroom of
Accused No.1 900 grams of Hashish Oil was seized. In the
voluntary statement A1 and A2 have stated that Accused No.3
who is a Nigerian citizen has supplied contraband to them. A3
is also arrested, from A3 57 grams of MDMA is seized.
The petitioners herein are accused No.1 and 2 in the
case. The investigation in the case is concluded and charge
sheet is filed.

6
8. It is argued by the learned counsel for petitioners that
The mandatory provisions of search and seizure are not
complied. They are having no criminal antecedents They are
permanent residents of the address given in the cause title. In
the event of grant of bail they are 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 petitioners is punishable
upto 10 years. In the event of grant of bail they are 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 2 Kg 60 grams of Hashish Oil under the seizure
panchanama from present petitioners. As per specification of
small
and
psychotropic
Department
commercial
substance
of
Revenue
quantity
issued
by
of
narcotic
Ministry
Notification
drug
of
S.O.1055(E)
or
Finance
dated
19.10.2001 at Sl.No.23 the narcotic drugнHashish Oil 100
7
CCHн33
Crl.Misc.No.528/2023
grams is small quantity and 1 Kg., is commercial quantity. In
this case the quantum of Hashish Oil seized is 2 Kg 60 grams
which is a commercial quantity.

11. On looking to the prosecution papers the quantum
of narcotic substance seized 2 Kg 60 grams of Hashish Oil
from the conscious possession of present petitioners. 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
8
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 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.

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
9
CCHн33
Crl.Misc.No.528/2023
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
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
10
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 himself 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 :
“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
11
CCHн33
Crl.Misc.No.528/2023
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 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 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 petitioners
are not guilty and they are not likely to commit any offence
12
while on bail. Here in the present case the petitioners were
apprehended and 2 Kg 60 grams of Hashish Oil
was seized
from them. The quantity of the contraband is commercial
quantity. Investigation is completed and charge sheet has been
filed. At this stage, there are prima facie materials available
against the petitioners in regard to the possession of narcotic
drug.

In the result, I proceed to hold that the petitioners
herein have not made out any grounds to entertain their 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
petitioners
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 30th DAY OF JANUARY 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.