Crl.Misc. No.8266/2023
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KABC010227352023
In the Court of the XXXIV Additional City Civil and Sessions Judge and
Special Judge, (NDPS), (CCH-35), Bengaluru
Dated this the 6 th day of October, 2023
Present :Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge and
Special Judge, (NDPS),
Bengaluru.
Crl.Misc. No.8266/2023
Petitioners:
(Accused Nos.1 & 2)
1.

Daniel Chibundu Ndeka,
S/o John Friday,
Aged about 25 years,
R/at No.59, Jeevan Jyothi Apartment,
5th Cross, Arkavathi Road,
4th Main dead End, Achith Nagar,
Soladevanahalli North,
Bangalore 560 107.
Permanent : r/o Lagos State,
Mafoluku, Nigeria Ц 460 001.

2.

Mike Okibe Onyebunie,
S/o Sylvanus Odimba,
Aged about 37 years,
Present address
R/at No.59,
Jeevan Jyothi Apartment,
5th Cross, Arkavathi Road,
4th Main Dead End, Achith Nagar,
Soladevanahalli North,
Bangalore 560 107.

Crl.Misc. No.8266/2023
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Permanent R/o :
Permanent r/of Ozara Imo State,
Nigeria Ц 464105.
(By Sri. Nishit Kumar Shetty, Advocate)
Vs.
Respondent:
State of Karnataka
by SHO, Kempegowda Nagar
Police Station, Bengaluru.
(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 and 2 to enlarge them on bail in Crime No.101/2023
registered by Respondent Ц Kempegowda (K.G.) Nagar Police Station,
Bengaluru City, for the offences punishable under Section 22(C) of
Narcotic Drugs and Psychotropic Substances Act,1985 (‘NDPS Act’ for
short).
2)
The Learned Public Prosecutor has filed an objection to this
criminal miscellaneous petition along with the 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:
Crl.Misc. No.8266/2023
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Point No.1: Whether petitioners / accused Nos.1 and 2
satisfy that there are reasonable grounds for believing that
they are not guilty of an alleged offence 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. That on 03.07.2023 at 12.00 noon when Sri. Manoj Kurane,
Police Sub-Inspector (PSI), K.G. Nagar police station, Bengaluru City was
in station, he has received credible information from the informer that two
foreigners aged about 25 to 35 years will come in a white colour Activa
No.KA-04/JC 0462 at 12.30 p.m., at the back gate of Adarsha College, 5 th
Main, Chamarajpet, within the limits of K.G. Nagar police station and sell
Narcotic drugs to college students. Thereafter, PSI entered the
information in Station House Diary and informed the Police Inspector,
K.G. Nagar Police Station that he received. Thereafter, PSI informed the
Assistant Commissioner of Police, V.V. Puram Sub-Division about the
information and at 12.40 p.m sent a written requisition to Deputy
Commissioner of Police (DCP) (South) for issuance of search warrant to
carry out the raid. Thereafter, PSI called for two panchas to the police
Crl.Misc. No.8266/2023
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station at 12.50 p.m. and informed them about the information that he
received and issued a police notice requesting them to assist as panchas.
Meanwhile at 1.20 p.m., the PSI received a search warrant from the DCP,
(South). Thereafter, PSI also informed the information to some staff of
K.G. Nagar police station and searched each other and the vehicles to
see that there were no narcotic drugs with them and in the vehicle. The
PSI along with panchas and staff left the Police Station at 1.40 p.m. and
reached near the place at 1.55 p.m.
7) While watching PSI and others saw two foreigners about 25 to
35 years were standing near the back gate of Adarsha college by parking
a white colour Activa No.KA-04/JC 0402 and one among them was
carrying a bag on his shoulder and showing something to the boys who
were passing on the road. Thereafter, PSI sent Sri. Ranjit Shetty, ASI as
decoy and instructed him to raise his right hand if the information is
confirmed. After the signal by ASI, Sri. Ranjit Shetty, the PSI and others
went near the said persons to catch them and detained them at 2.10 p.m.
On enquiry, said persons revealed their name and address. Accused
No.1 has stated that he is having Cocaine in the bag that he hanged on
his shoulder and accused No.2 stated that he is having Ecstasy pills in his
pants pocket.
8) Thereafter, PSI called for ACP, V.V. Puram Sub-Division at 2.20
p.m. for search of person of accused Nos.1 and 2 and ACP reached the
place at 3.00 p.m. Thereafter, ACP enquired accused Nos.1 and 2 and
issued questionnaire as to search of accused Nos.1 and 2 and after the
consent of accused Nos.1 and 2, ACP carried out search of accused
Nos.1 and 2. ACP found white colour powder in a plastic cover kept in
the bag that was carried by accused No.1 and after weighing white colour
Crl.Misc. No.8266/2023
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powder ACP found 260 grams of Cocaine. ACP found pink and blue
colour pills in a plastic cover kept in the pants pocket of accused No.2
and after weighing pink and blue colour pills ACP found 30.3 grams of
Ecstasy pills. Thereafter, ACP seized Cocaine and Ecstasy pills under
seizure mahazar between 2.10 p.m. to 5.00 p.m. Thereafter, PSI brought
accused Nos.1 and 2 along with seized Cocaine and Ecstasy pills and
other articles to Kempegowda Nagar police station at 5.20 p.m. and gave
a computer typed complaint / information. On the basis of complaint, Sri.
Nagabhushan N, PSI, Kempegowda Nagar police station has registered a
first information report under Crime No.101/2023 against accused Nos.1
and 2 for an offence punishable under Section 22(C) of NDPS Act.
9) The petitioners have urged the following grounds for their
release on bail:
i) Petitioners have been falsely implicated in the case.
ii) Under Section 42(2) of NDPS Act, when an officer receives
the information he should reduce it into writing and should send a
copy of it to his immediate superior. But in the present case this has
not been done and non compliance of Section 42(2) of NDPS Act is
fatal to the case of prosecution and would vitiate the trial.
iii) The petitioners were not at all apprised of their right under
Section 50 of NDPS Act by the complainant, who is the empowered
officer. The complainant mechanically sent a requisition to the ACP
to come to the spot and conduct body search.
iv) Spot detection test was not conducted and without
conducting spot detection test, it cannot be said that the seized
article is a narcotic contraband. The Drug Law Enforcement
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Authority in its handbook has issued the procedure for recovery of
the articles and the seized articles must be tested with the help of
Field Drug Identification Test Kit and an indicative nature of the
substance should be established from the colour range and that
should also be corroborated by questioning the owner occupier /
possessor to ensure that the substance recovered is a NDPS or CS
and whenever the suspected substance is recovered, a small
quantity of substances from each pocket must be tested with the
Field Test Kit.
v) Even though the seized contraband is commercial quantity,
when the mandatory provisions under NDPS Act are not complied,
the bar under Section 37 of NDPS is not attracted.
vi) The procedure adopted by the police is totally in violation
of Section 154 of Cr.P.C. The complainant, without registering the
case, directly raided the spot and conducted the Mahazar and
arrested the petitioner.
10)
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.27, 2 grams and 100 grams of cocaine is specified as small and
commercial quantity respectively. At Serial No.134, 0.5 grams and 10
grams of MDMA, ecstasy is specified as small and commercial quantity
respectively.

In this case 260 grams of cocaine and 30.3 grams of
ecstasy pills were seized from the possession of accused No.1 and 2
together, which is a commercial quantity.
11) As per Section 22(c) of NDPS Act, whoever, in contravention
of any provisions of NDPS Act or any rule or order made or condition of
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license granted thereunder produces, manufactures, possesses, sells,
purchases, transports, imports inter-state, exports inter-state or uses
psychotropic substance 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.
12) 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.
13)
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
14) The conditions for grant of bail in offences punishable under
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
Crl.Misc. No.8266/2023
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be enlarged on bail.
15) 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
16) The counsel for the petitioner in his argument has reiterated
the grounds stated in the petition. The Counsel for petitioner has
produced a decision of HonТble High Court of Karnataka, Bengaluru
passed on 15.7.2019 in Crl.P. No.925/2019 (MR. Alden Karkada vs. The
State of Karnataka by SHO, Mangalore East police Station), wherein his
lordship at para Nos.8 and 9 has held as under :
У8. Thus entire criminal investigation has been
completed before registering the FIR which is
impermissible in law.
9. Resultantly, this petition merits consideration and it
is accordingly allowed. All proceeding in Spl.C.No.78/2018
(Crime No.247/2017) pending on the file of Principal
Sessions Judge, and Special Judge, D.K., are quashedФ.
17)
In this case PSI, K.G. Nagar police station has received
information at 12.00 noon of 3.7.2023 and seized 260 grams of cocaine
from the possession of accused No.1 and 30.3 grams of ecstasy pills
from the possession of accused No.2 under seizure mahazar between
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2.10 p.m., to 5.00 p.m., of 3.7.2023. Thereafter, PSI gave complaint /
information at 5.50 p.m., of 3.7.2023 and first information report was
registered at 6.05 p.m., of 3.7.2023. As held in the above decision of
HonТble High Court of Karnataka, Bengaluru, the entire criminal
investigation was completed before registering the FIR.
18) Perused the seizure mahazar. In the seizure mahazar, PSI has
stated as under:
У??? ?????? ????? ?????? ???? ??????? ???????
?????????? ??? ?????? ??????????? ??????????
??????? ????????
?.???.?. ???? ??? ?.?. ????
??????? ?.?.?. ????? ??? ???????? ????? ?.?.
19543 ??? ???? ?????? 2.20 ?????? ????? ?????? ??????
??????? ?????????? ?????? ???? ?.?.?., ?.?. ???? ??????
????? ??? ?????? ?. ???? ?????? 3.00 ?????? ??? ??????
??????? ???????? (????????????????) ?????”.
19) By perusal of the seizure mahazar, it is clear that the PSI has
not informed accused Nos.1 and 2 about their right to take them for their
search before nearest Gazetted Officer of any of the departments
mentioned in section 42 or before the nearest Magistrate. The ACP has
also searched the person of accused Nos.1 and 2 and found mobile
phones from their pant pockets. Counsel for petitioners has produced the
decisions reported in (2018) 9 Supreme Court Cases 708 ( S.K. Raju @
Abdul Haque @ Jagga vs. State of West Bengal). In this decision their
lordships at para No.22 have opined that when the search conducted was
not only of the bag which the accused was carrying, but also of the
person of accused Section 50 would be attracted.
20)
In the seizure mahazar, ACP has stated that by shape and
smell of the articles and by experience, they came to an opinion that
Crl.Misc. No.8266/2023
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accused No.1 was in possession of 260 grams of cocaine and accused
No.2 was in possession of 30.3 grams of ecstasy pills.

The ACP has not
conducted test to prima facie confirm the articles said to be seized were
cocaine and ecstasy pills.
21)
The learned PP has produced the following decisions in
support of his argument.
1. 2022 (3) Crimes 155 (SC) (Narcotics control Bureau Vs. Mohith
Agarwal).
2. Spl. Leave petition (Crl) 2866/2000 (Babua @ Tazmul Hossein
vs. State of Orissa).
3. AIR 2000 SC 3397 (Union of India Vs. Ikram Khan and ors).
4. Crl. Misc. 3080/2023 (DD on 15.4.2023) by this court.
In the above decisions their lordships have reiterated that the court
has to borne in mind the provisions of Section 37 of NDPS Act, which are
mandatory in nature while deciding bail application.
22) The counsel for petitioner has produced a decision of HonТble
Supreme Court of India reported in 2023 Live Law (SC) 260 (Mohd
Muslim @ Hussain Vs. State (NCT of Delhi) wherein their lordships at
para No.19 have held as under:
У19. A plain and literal interpretation of the conditions
under Section 37 (i.e., that Court should be satisfied that the
accused is not guilty and would not commit any offence) would
effectively exclude grant of bail altogether, resulting in punitive
detention and unsanctioned preventive detention as well.
Therefore, the only manner in which such special conditions
as enacted under Section 37 can be considered within
constitutional parameters is where the court is reasonably
satisfied on a prima facie look at the material on record
Crl.Misc. No.8266/2023
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(whenever the bail application is made) that the accused is not
guilty. Any other interpretation, would result in complete denial
of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act.Ф
23) The prosecution in the objection filed to this criminal
miscellaneous petition has contended that if the accused Nos.1 and 2 are
released on bail, they may commit the similar offences, tamper with the
prosecution witnesses and may not appear before the court.

The
petitioners are the citizens of Nigeria. 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.
24) In view of the discussion, I made above, I come to an opinion
that, petitioners / accused Nos.1 and 2 are able to satisfy that there are
reasonable grounds for believing that they are not guilty of an alleged
offences. Hence, I answer point No.1 in the Affirmative.
25) 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 and 2 is
allowed.
The petitioners / accused Nos.1 and 2 are enlarged on bail on
execution of personal bond of Rs.2,00,000/- (Rupees Two lakh) each,
along with Two sureties for the like sum in Crime No.101/2023 registered
by Respondent Ц Kempegowda Nagar Police Station, Bengaluru City, for
the offences punishable under Section 22(C) of Narcotic Drugs and
Crl.Misc. No.8266/2023
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Psychotropic Substances Act,1985, on the following conditions:
(1) The petitioners / accused Nos.1 and 2 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 and 2 shall regularly appear
before the court.
(3) The petitioners / accused Nos.1 and 2 shall cooperate with the
Investigation Officer (I.O) for investigation.
(4) The petitioners / accused Nos.1 and 2 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
and 2 would entail cancellation of bail.
(Dictated partly and also directly to the Judgment Writer on computer, after transcribed /
typed by him, corrected, signed and pronounced in the open court on this the 6th day of
Digitally signed by
October, 2023).
RAGHAVENDRA RAGHAVENDRA G
Date: 2023.10.10
G
10:31:01 +0530
(G. Raghavendra)
XXXIV Addl. City Civil & Sessions Judge
& Special Judge (NDPS), Bengaluru.