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 17 th DAY OF DECEMBER 2022 Crl.Misc.No.12021/2022 petitioners : 1. B.Budishti Yadav, (accused No.1 & 2) S/o.Narayana, a/a 28 years, R/at Purushothapurm, Icchapuram Mandalam, Shrikakulam Taluk & District, Andhrapradesh.
2. Manikumar, S/o.Mohan Rao, a/a 22 years, R/at Purushothapurm, Icchapuram Mandalam, Shrikakulam Taluk & District, Andhrapradesh.
(By Sri.Jagadeesh Murthy. Adv.) V/S. Respondent : State by Mahalakshmilayout PS (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioners to enlarge them on bail, in Cr.No.233/2022 of Mahalakshmilayout PS., registered for the offences punishable U/Sec.20 (B) of N.D.P.S. Act.
2. The grounds urged by the petitioners for grant of bail
are as under: That the petitioners are very innocent and law abiding citizens. They have not committed any offence much less the offence as alleged. They have no knowledge of alleged crime and falsely implanted at the instance of extraneous elements. The complainant have not seized any contraband from the possession of the petitioners. They are the only earning member of their family. The mandatory provisions U/s.50 of NDPS Act have not been complied. The petitioners are residents of Andhra Pradesh, they are labourers. On the date of incident they came to Bangalore to meet their supervisor to collect their arrears of wage and they were in search of house of their contractor. At that time respondent police who were on beet duty took them forcibly to their station and foisted the CCH-33 Crl.Misc.No.12021/2022 above false case against them. The petitioners were not in possession of the alleged contraband. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. 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. They have no bad antecedents. They are the sole bread earners of their family. Hence, sought to grant bail.
3. The objection raised by the prosecution are that the
investigating agency have in all seized 194 Kgs of ganja from the possession of the petitioners herein and other accused. The accused are found to be in possession of narcotic substance. A detailed mahazar are drawn in the spot. Personal search are conducted. The offence alleged against the petitioners is punishable with rigorous imprisonment for a term which shall extend upto 10 years. There are a primafacie case available against the petitioners. They are habitual drug dealers. In the event of grant of bail, they would abscond and may hamper the investigation. Hence, sought to reject the bail plea of petitioners.
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 petitioners have made out sufficient grounds to enlarge them 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:- The PSI of Mahalakshmilayout PS., has
put the criminal law into motion. The gist of the allegation reads as here under:- On 01/12/2022 at about 3.30 p.m., when the complainant and his staff were on patrolling duty within the limits of respondent police station, at Kamalammana Gundi CCH-33 Crl.Misc.No.12021/2022 play ground, Mahalakshmi Layout, Bengaluru two persons were standing with the travelers bag near the said play ground, on seeing the police they tried to run away from the spot. They were apprehended. On enquiry they have revealed their names as Dudisti, Manikumar of Ittapura Mandalam, Andhra Pradesh. When they were questioned about the contents of the bag they have revealed that they are in possession of ganja. They have purchased ganja from a person of Vishakapatnam and they are selling the same at Bangalore for Rs.4000/- per 100 gram and Rs.40,000/- per KG. Prior to this they have sold the ganja to one Hoova of Bangalore. They came there to sell ganja to Hoova on that day. When the bag was opened it was containing bundles draped with khaki tapes. The said covers were opened and it is containing ganja. The entire quantum of ganja was weighed. The total weight of the ganja is 8 Kgs. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared and submitted before SHO which is the basis to register the case in Cr.No.233/2022 against the present petitioners and one Hoova for the offence punishable U/s.20(B) of NDPS Act. Thereafter they were arrested and produced before jurisdictional Magistrate and were remanded to JC. The petitioners herein are Accused Nos.1 & 2 in the case. The petitioners herein were interrogated by the investigating agency. During their voluntary statement they have stated that they have sold ganja on whole sale price to accused No.3 Hoova and one Ananda. About a month back the said Ananda of Bangalore came to Vishakapatnam and purchased 200 Kgs., of ganja on wholesale price i.e., Rs.8000/- per Kg. Now they are not in possession of any ganja and they have sold the entire quantum to one Ananda. The PSI who is the search and seizing officer has assigned the staff to apprehend accused Nos.3 Hoova and one Ananda. On 5.12.2022 at 3.00 pm., Ananda was apprehended at his house situated at 4th main, 11th Cross, Bapujinagar, Vijayanagar, Bangalore. On enquiry he has stated that he has purchased ganja from accused Nos.1 and 2 and has stored it in his house. He has shown the ganja which was hidden in the house to the police. The said ganja was kept in 11 bags. It was weighed. The weight came around 186 Kgs. He was arrested, brought to PS., his statement came to be recorded. He is produced before CCH-33 Crl.Misc.No.12021/2022 the court and remanded to Judicial Custody. Accused No.3 Hoova @ Manjunatha is not secured yet by the investigating agency.
8. It are argued by the learned counsel for petitioners
that they are planted in the case by the complainant police they are unaware of seized drug. The seized article are not commercial quantity. The mandatory provisions of Sec.41, 42, 50, 52 and 47 of the Act are not complied. 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. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on 1.12.2022 complainant have conducted raid and apprehended accused. On looking to the seizure panchanama the drugs seized from accused is weighing 8 Kgs 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 8 Kgs is an intermediate quantity. As per the decision of Hon'ble Apex Court reported in 2018 11 SCC 488 Birbal Prasad Vs., State of Bihar wherein it are held that: Ss.37 and 20 – Bail – grant of – non commercial quantity – quantity involved being only 14 Kgs., of ganja, which are 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 intermediate 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. In the instant case the petitioners herein were arrested by the investigating agency and from their conscious possession 8 Kgs., of ganja is seized. During their voluntary statement they have revealed that they have sold ganja to one Hoova @ Manjunath and one Anand. The said Anand was apprehended CCH-33 Crl.Misc.No.12021/2022 by the investigating agency on 5.12.2022 at his house situated at Bajujinagar, Vijayanagar, Bangalore. In the house of Ananda 186 Kgs., of ganja was found stored. The allegation against the present petitioners is they have sold the said quantum of ganja about a month ago to the said Ananda. But in regard to the said sale of ganja the mode of transport of ganja to the house of Ananda and the mode of payment no documents were collected by the investigating agency at this stage. The present petitioners were arrested on 1.12.2022, Ananda from whom commercial quantity is seized was secured on 5.12.2022. therefore, at this stage, the seizure which is effected at the instant of present petitioners have to be taken into consideration.
10. Here in this case the drugs seized by the investigating
agency to the tune of 8 Kgs of ganja which are an intermediate quantity. When the quantity are less than commercial quantity, rigors of Sec.37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statues normal, unless the prosecution points towards exceptional circumstances.
11. The major portion of investigation in the case are
concluded as the incriminatory article are already seized from accused. The offence alleged against the petitioners is not punishable with death or imprisonment for life. Further custodial interrogation are not warranted. their Voluntary statement is already recorded. As per the information provided by the petitioners they are permanently residing in the address shown in the cause title. The apprehension of the prosecution that they 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 petitioners U/Sec.439 of Cr.P.C are hereby allowed. The petitioners are enlarged on bail on executing personal bond for a sum of Rs.1,00,000/- CCH-33 Crl.Misc.No.12021/2022 each with two sureties for the like sum with following conditions.
1. The petitioners shall give attendance before the concerned I.O., once in a month i.e., preferably on first Monday of every month in between 10.00 am., to 2.00 pm., till filing of charge sheet or further orders whichever are earlier.
2. They shall not leave the jurisdiction of this court without prior permission.
3. They shall not tamper the witness or abscond.
4. They shall co-operate with I.O for investigation.
5. They shall not commit similar offence or any offence while on bail.
6. They shall furnish their photo ID proof and local address proof document before the court and photo ID proof of their sureties.
7. They shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioners 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 17th day of December 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*