Crl.Misc. No.8467/2023
1
KABC010233632023
In the Court of the XXXIV Additional City Civil and Sessions Judge and
Special Judge, (NDPS), (CCHЦ35), Bengaluru
Dated this the 11 th day of September, 2023
Present :Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge and
Special Judge, (NDPS),
Bengaluru.
Crl.Misc. No.8467/2023
Petitioners:
(Accused Nos.1 to 5)
1.
Baisannaba Rana
S/o Roopesh Rana,
Aged 23 years,
R/at Pendimunda village,
Thentalakunti (G.P.),
Thusara Tana, Bolangir District,
Oddisa.
2.
Deepak Rana
S/o Ganesh Rao Rana
Aged 34 years,
R/at Pendimunda village,
Thentalakunti (G.P.),
Thusara Tana, Bolangir District,
Oddisa.
3.
Shiba Rana
S/o Jubaraja Rana
Aged about 21 years
R/at Pendimunda village,
Thentalakunti (G.P.),
Crl.Misc. No.8467/2023
2
Thusara Tana, Bolangir District,
Oddisa.
4.
Akash Kumar
S/o Kujabhana Kumar
Aged about 20 years,
R/at Baludhurgri village,
Badhubairno Tana,
Subarna Pura District,
Oddisa.
5.
Dholeshwara Rana
S/o Himan,
Aged about 20 years,
R/at Pendimunda village,
Thentalakunti (G.P.),
Thusara Tana, Bolangir District,
Oddisa.
(By Sri. G. Muralidhar, Advocate)
Vs.
Respondent:
The State of Karnataka,
by Yelahanka New Town Police Station,
Bengaluru City.
(By Public Prosecutor)
ORDER
1) This Criminal Miscellaneous Petition under Section 439 of Code
of Criminal Procedure, 1973 (‘Cr.P.C.’ for short) is filed by Petitioners /
accused Nos.1 to 5 to enlarge them on regular bail in Crime No.192/2023
registered by Respondent Ц Yelahanka New Town Police Station,
Bengaluru City for the offences punishable under Section 20(b) (ii) (B) and
20(c) of Narcotic Drugs and Psychotropic Substances Act,1985 (‘NDPS
Act’ for short).
Crl.Misc. No.8467/2023
3
2) The Learned Public Prosecutor has filed an objection to this
criminal miscellaneous petition along with a report of the investigation
Officer.
3) Heard the Counsel for Petitioners and learned Public Prosecutor.
4) On the basis of contents of the petition, contentions taken in the
objection filed to this application and on the submission of both the
Counsel for Petitioners and learned Public Prosecutor, the following points
arise for my consideration:
Point No.1: Whether Petitioners / accused Nos.1 to 5
satisfy that there are reasonable grounds for believing that
they are not guilty of the alleged offences and they are not
likely to commit any offence while on bail?
Point No.2: What Order?
5) My answer to the above points are as under:
Point No.1: In the Affirmative.
Point No.2: As per the final order for the following:
REASONS
6)
Point No.1:
Perused the certified copy of the documents
produced by the petitioners along with this criminal miscellaneous petition.
These documents reveal that on 27.06.2023 at 12.00 noon when Sushma
M.L., Police Sub-Inspector, Yelahanka New Town police station, was in
station, she has received an information from the informer that on the
road from the side of K.K. Hospital towards LBS city, before K.K. Hospital,
Crl.Misc. No.8467/2023
4
Yelahanka New Town A Sector, within the limits of Yelahanka New Town
police station, some unknown persons are selling ganja to the public and
students.
Thereafter,
PSI
obtained
permission
from
Assistant
Commissioner of Police, Yelahanka Sub-Division to carry out the raid.
Thereafter, PSI called for panchas to the police station and informed them
about the information she received and issued notice requesting them to
assist as panchas. Thereafter, PSI along with panchas and staff left the
police station at 12.30 p.m. after searching each other to see that there
were no narcotic drugs with them and reached near the place at 12.45
p.m.
7) The PSI saw five persons carrying bags and waiting for
somebody a little away from the back gate of Poornapragna school.
Thereafter, PSI detained said five persons and on enquiry said persons
revealed their name and address and they have stated that accused No.1
has has purchased ganja at Tushar Town, Bolangir District, from unknown
persons and came there to sell the same to public and students through
accused No.6, who is residing at Bangalore and known to them.
Thereafter, PSI requested Sri. Manjunath R, Assistant Commissioner of
Police, Yelahanka Sub-Division to reach the place and conduct search of
person of accused Nos.1 to 5. Thereafter, ACP arrived at the spot and
after introducing himself to he informed accused Nos.1 to 5 about their
right to be searched by a gazetted officer, that he is a gazetted officer ann
can he search them or they want to be searched by another gazetted
officer. Thereafter, ACP conducted a search of accused Nos.1 to 5. ACP
found a bundle in the bag of accused No.1 and found 7 kgs of ganja from
the said bundle. ACP found a bundle in the bag of accused No.2 and
found 7 kgs of ganja from the said bundle. ACP found a bundle in the bag
Crl.Misc. No.8467/2023
5
of accused No.3 and found 7 kgs of ganja from the said bundle and ACP
found a bundle in the bag of accused No.4 and found 7 kgs of ganja from
the said bundle. ACP also found Oppo company mobile and Rs.270/from the possession of accused No.5. ACP totally seized 28 kgs of ganja
and other articles under seizure mahazar between 12.45 p.m. to 2.45 p.m.
thereafter, PSI brought accused Nos.1 to 5 along with seized ganja and
other articles to Yelahanka New Town police station and gave a computer
typed complaint / information at 3.15 p.m. On the basis of complaint Sri.
Govindaraju, Police Inspector, Yelahanka New Town police station, has
registered a first information report under Crime No.192/2023 against the
petitioner / accused Nos.1 to 5 and accused N.6, one Ranjan for offence
punishable under Section 20(b) (ii) (B) and 20(c) of NDPS Act.
8) The Petitioners in this petition have urged the following grounds:
i) The petitioners have been falsely implicated in the case.
ii) The petitioners do not have a nexus with each other and they
have to be viewed indefinitely. The petitioners No.1 to 4 each had 7 kgs of
ganja separately. If viewed independently it does not amount to
commercial quantity. The petitioner No.5 was not in possession of any
ganja.
iii) The mandatory provisions under Sections 42, 50 and 57 of the
NDPS Act are not complied.
9) In specification of the small and commercial quantity of Narcotic
Drug or Psychotropic Substance, SO 1055 (E), dated 19.10.2021 as
amended, issued by the Central Government at Serial
No.55, 1000
grams of ganja is specified as small quantity and 20 kg of ganja is
Crl.Misc. No.8467/2023
6
specified as commercial quantity. The ganja recovered in this case from
the accused Nos.1 to 5 together is 28 kgs., which is a commercial
quantity.
10) As per Section 20(b) (ii) (C) whoever, in contravention of any
provisions of NDPS Act or any rule or order made or condition of license
granted thereunder produces, manufactures, possesses, sells, purchases,
transports, imports inter-state, exports inter-state or uses cannabis which
involves
commercial
quantity
shall
be
punishable
with
rigorous
imprisonment for a term which shall not be less than ten years but which
may extend to twenty years and shall also be liable to fine which shall not
be less than one lakh rupees but which may extend to two lakh rupees.
11) Section 37 of NDPS Act, mandates that no person accused of
offences punishable for offences under Section 19 or Section 24 or
Section 27A and also for offences involving commercial quantity shall be
released on bail, unless the court satisfied that there are reasonable
grounds for believing that accused is/are not guilty of such offences and
that accused is/are not likely to commit any offences while on bail.
12)
Section 37(2) of NDPS Act, reads as under:
У37.
Offences to be cognizable and non-bailable
(1)
xxxx xxx
(2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Code of Criminal
Procedure, 1973(2 of 1974) or any other law for the time being in force,
on granting of bail.Ф
13) The conditions for grant of bail in offences punishable under
Crl.Misc. No.8467/2023
7
Section 19 or Section 24 or Section 27A and also for offences involving
commercial quantity are differ from the general rule of bail. Two additional
preconditions are imposed upon the accused in addition to the ones
prescribed under Cr.P.C, which are to be satisfied before an accused can
be enlarged on bail.
14) The Hon’ble Supreme Court of India in a decision reported in
(2007) 7 SCC 798 (Union of India vs. Shiva Shanker Kesari) at para No.7
has opined as under:
У7. The expression used in Section 37(1)(b)(ii) is
Уreasonable groundsФ. The expression means something more
than prima facie grounds. It connotes substantial probable
causes for believing that the accused is not guilty of the offence
charged and this reasonable belief contemplated in turn points
to existence of such facts and circumstances as are sufficient in
themselves to justify recording of satisfaction that the accused is
not guilty of the offence charged.Ф
15)
The counsel for petitioners submitted that, the ganja alleged
to be seized includes leaves and seeds which is not ganja as per the
definition of section 2 (iii) of NDPS Act. Perused the seizure mahazar
dated 3.7.2023 under which the Excise Sub-inspector has seized totally
24 kgs 902 grams of ganja. In this seizure mahazar it is stated as under:In
the complaint, the ganja seized is described as under:
У????? ??????? ????? ???????? ???????? ???? , ??? ????
??????? ?????? ????? ???? ……Ф
16) Section 2 (iii) of NDPS Act, defines Cannabis (hemp) as under.
УCannabis (hemp) means(a) charas, that is, the separated resin, in whatever form,
Crl.Misc. No.8467/2023
8
whether crude or purified, obtained from the cannabis plant
and also includes concentrated preparation and resin known
as hashish oil or liquid hashish;
(b)
ganja, that is, the flowering or fruiting tops of the
cannabis plant (excluding the seeds and leaves when not
accompanied by the tops), by whatever name they may be
known or designated; and
(c)
any mixture, with or without any neutral material, of any
of the above forms of cannabis or any drink prepared
therefrom;Ф
17) The Counsel for the petitioners in his argument has submitted
that the PSI has not informed the right of accused Nos.1 to 5 as to their
search by a gazetted officer or a Magistrate as mandated under Section
50 of NDPS Act. It is noticed that PSI without informing accused Nos.1 to
5 about their right to be searched by a gazetted officer or a Magistrate has
called for Sri. R. Manjunath, Assistant Commissioner of Police, Yelahanka
Sub-Division to reach the place and carry out the search of person of
accused Nos.1 to 5. ACP, Yelahanka Sub-Division also has not informed
accused Nos.1 to 5 about their right to be searched by a gazetted officer
or a Magistrate. ACP, Yelahanka Sub-Division has informed accused
Nos.1 to 5 about their right to be searched by a gazetted officer, that he is
a gazetted officer and can he search them or they want to be searched by
another gazetted officer.
18) The Counsel for petitioners in his argument has submitted that
the respondent police have not tested the alleged ganja by narcotic drugs
test kit. It is noticed that the ACP has not conducted test of alleged seized
Crl.Misc. No.8467/2023
9
ganja from narcotic drugs test kit.
19) The prosecution in the objection filed to this criminal
miscellaneous petition has contended that if the accused are released on
bail, they may commit the similar offences, tamper with the prosecution
witnesses and may not appear before the court. The prosecution has not
objected to the bail application on the reason that accused No.1 to 5 are
involved in similar offences or in any other case. The accused No.1 to 5
are from Odisha State.
I am of the opinion that the objections of
prosecution can be met by imposing conditions as stated in Section
437(3) of Cr.P.C.
20) In view of the discussion, I made above, I am of the opinion
that, Petitioners / accused Nos.1 to 5 are able to satisfy that there are
reasonable grounds for believing that they are not guilty of the alleged
offences. Hence, I answer point No.1 in the Affirmative.
21)
Point No.2:- In view of the answer, I arrived to point No.1, I
proceed to pass the following:ORDER
The Criminal Miscellaneous Petition under Section 439 of Code of
Criminal Procedure, 1973 filed by Petitioners / accused Nos.1 to 5 is
allowed.
The Petitioners / accused
Nos.1 to 5 are enlarged on bail on
execution of personal bond of Rs.1,00,000/- (Rupees One lakh) each,
along with two sureties for the like sum in Crime No.192/2023 registered
by Respondent Ц Yelahanka New Town Police Station, Bengaluru, for the
offences punishable under Section 20(b) (ii) (B) and 20(c) of NDPS Act,
Crl.Misc. No.8467/2023
10
1985, on the following conditions:
(1) The Petitioners / accused Nos.1 to 5 shall not directly or indirectly
make any inducement, threat or promise to any person acquainted
with the facts of the case.
(2) The Petitioners / accused Nos.1 to 5 shall cooperate with the
Investigation Officer (I.O) for investigation.
(3) The Petitioners / accused Nos.1 to 5 shall regularly appear before
the court.
(4) The Petitioners / accused Nos.1 to 5 shall not commit any offences
similar to the offences of which they are accused or any other
offences.
(5) Breach of any of the conditions by the Petitioners / accused Nos.1
to 5 would entail cancellation of bail.
(Dictated to the Judgment Writer partly and also directly on computer, after
transcribed/ typed by him, corrected, signed and pronounced in the open court on this the
11th day of September, 2023).
RAGHAVENDRA
G
Digitally signed by
RAGHAVENDRA G
Date: 2023.09.13
11:19:08 +0530
(G. Raghavendra)
XXXIV Addl. City Civil & Sessions Judge
& Special Judge (NDPS), Bengaluru.