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 24th DAY OF JANUARY 2023
Crl. Misc.No.179/2023
Petitioners :
(accused No.6 & 7, 8)
1. Blessing Chinonye Oboh,
D/o.Chinonye Oboh, a/a 23
years, R/at H.No.359, 2nd Floor,
Phase 1A, Om Vihar, Gali No.22,
Uttam Nagar, New Delhiн110059
Permanent address R/o 77
street, Asaba Delta State,
Nigeriaн320242.
2. Grace Agwu Onuka D/o.Agwu
Onuka, a/a 21 years, R/at
H.No.359, 2nd Floor, Phase 1A,
Om Vihar, Gali No.22, Uttam
Nagar, New Delhiн110059
Permanent address R/o H.No.20,
Alhaji Usman Street, Kaduna,
Nigeria
3. Charity Victoria Affia,
S/o.Joseph Affia,
Aged about 40 years,
Chapora Uttam Nagara,
New Delhiн110059.
Permanent Address
Affia Street, Ebonyi State Nigeria
(By Sri.NKS., Adv.
V/S.

Respondent :
State by NCB PS.

2
(By Spl.Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners
to
enlarge
them
on
bail,
in
NCB.Cr.No.48/1/13/2022/BZU for the offence punishable
under Sec.8(c), 21 23, 28 and 29 of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:н
That the petitioners are 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 present petitioners were arrested
basing on the statements made by other accused which is
inadmissible in law. It is contended that the accused No.9 has
been
granted
bail
by
HonТble
High
Court
In
Crl.P.

No.10604/2022 vide order dated 05.01.2023. The allegation
aagainst the present petitioners are similar in nature, hence on
the ground of parity they may be enlarged on bail. The
petitioners are ready and willing to abide by any conditions
3
CCHн33
Crl.Misc.No.179/2023
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.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 13.85 Kgs., of heroin from
the conscious possession of accused Nos.1 and 2 as it was
found in their baggages. Three other accused were arrested by
NCB Indore team and have recovered 7 Kgs., of Heroin from
each of them. The said accused persons have revealed that it
was the accused No.4 who had financed their travel and stay
in India and Africa with the help of accused No.3 under the
guidance of accused No.5. Basing on the recovery and the
statement of the accused No.3 and 4 and other accused. The
petitioners and other accused were put under arrest. The
present petitioners and other accused were arrested on
28.5.2022. Their voluntary statement were also recorded.
They have admitted the importing, transporting and taking,
delivering of seized heroin 13.850 Kgs. There are primafacie
materials available against the petitioners attracting the
offences alleged in the prosecution papers. With these main
pleas sought to reject the petition.

4
4. Heard learned counsel for the petitioners and the
prosecution.
5. The points that arise for my consideration are as here
under:
Whether petitioners 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 Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:н The IO., NCB has put the criminal law
into motion. The gist of the allegation reads as here under:н
On 23.05.2022 at about 17.05 hours the complainant
has received credible information that one luggage baggage
having tag No.KQ495221 contain narcotic drugs is carried by a
lady passenger from Dubai Airport who is traveling from
Nairobi to Bangalore via Dubai.

The said flight will reach
Bangalore at around 3.00 hours on 24.5.2022. On receipt of
the information he has informed to his higher officer and
CCHн33
Crl.Misc.No.179/2023
5
obtained permission to conduct raid.

The NCB team mounted
surveillance at KIA airport, Bangalore on 24.5.2022. At about
4.00 hours the customer service supervisor, Air India Sats KIA
Airport informed that the luggage bearing tag No.KQ 495221
has been arrived and the lady passenger would collect the
same at 5.15 hours.

When the lady passenger came to the
baggage arrival area the staff handed over the said luggage
baggage to the lady passenger and after identified and
confirmed by her that the said luggage belongs to her the NCB
team approached the said lady enquired her, she replied that
she received the said luggage from an African lady at
Zimbabwe on 14.5.2022 which contain narcotic drug.

On
search of the said luggage baggage they found 7 Kgs., of
heroin.

They seized the same. A detail mahazar is drawn,
Arrested the accused and registered the case in NCB.F
No.48/1/13/2022/BZU for the offences punishable under
Sec.8(c), 23C, 27A, 28 and 29 of NDPS Act.
8. In continuation of seizure of 7 Kgs., of Heroin on
24.5.2022 on the voluntary statement of accused No.1 they
raided the room No.001, Oyo 11419, Surya Residency, New
Airport Road, Bangalore and the accused showed the luggage
6
baggage.

On searching the same they found 6.850 Kgs., of
heroin. They seized the same under mahazar. Basing on the
statement of accused No.5 the present petitioner and accused
No.8 were secured by investigating agency. Accused No.5 has
stated his association with accused Nos.6 to 8. accused nos.6
to 8 were secured by the IO., NCB. Their voluntary statement
came to be recorded on 28.5.2022.

in their statement they
have stated about their involvement in importing, transporting
and taking delivery of seized 13.850 Kgs., of heroin.
9. The prosecution contends that in all 13.850 Kgs., of
Heroin is seized from the conscious possession of accused No.1
& 2 which is commercial quantity. The present petitioners were
arrested basing on the statement of accused No.5. They are
having knowledge of transport of heroin seized in the case. In
the event of their release they may abscond and may repeat
the crime and there is every possibility of absconding of the
petitioners. The offences alleged are punishable with RI upto
20 years. The petitioners are not entitled for bail.
10. On looking to the prosecution papers the quantum
of narcotic substance seized 13.850 Kgs., of Heroin. As per
specification of small and commercial quantity of narcotic drug
CCHн33
Crl.Misc.No.179/2023
7
or psychotropic substance issued by Ministry of Finance
Department
of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001 at Sl.No.56 the narcotic drug Ц Heroin weighing 05
grams is small quantity and 250 grams is a commercial
quantity. In the present case heroin seized is weighing 13.850
Kgs., is commercial quantity.

11.

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
the High Court and this court are required to apply while
granting bail is whether there are reasonable grounds to
8
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.

9
CCHн33
Crl.Misc.No.179/2023
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 coнaccused.

By making a detail observation in granting the bail to the
accused is 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.

10
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
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 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 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 petitioners are not guilty of the
offences with which they are charged and further that they
11
CCHн33
Crl.Misc.No.179/2023
are 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 petitioners are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them to a bail. In
the present case, the petitioners 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
petitioners or not. At this juncture, we cannot say that the
petitioners are 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 they are 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 petitioners 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.”
12
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 petitioners
are not guilty and that they are not likely to commit any
offence while on bail.

Huge quantum of contraband seized
from the conscious possession of accused No.1 & 2. The
petitioners herein are having knowledge of transport of the
heroin seized in the case. Basing on the voluntary statement
of accused No.5 the present petitioners were apprehended.
The accused No.9 is granted bail by the Hon’ble High Court of
Karnataka on looking to the allegations leveled against him.
The allegation against the present petitioners is that they are
having knowledge of transport of contraband. At this stage,
there are primafacie materials available against the petitioners
that they are having knowledge of transport of huge quantity of
contraband in the case. At this stage, no material placed on
record by the petitioners to show that the present petitioners
are no way connected with the alleged crime. Further, the
contention of the learned counsel for petitioners that, A9 has
been granted bail by Hon’ble High Court and hence, on the
CCHн33
Crl.Misc.No.179/2023
13
ground of parity could not be entertained for the reason that
Investigating Agency collected ample material against the
present
petitioners.

Therefore
said
plea
could
not
be
entertained 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
following:
In the result, I proceed to pass
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 24th day of January 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.