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 6 th DAY OF AUGUST 2022 Crl. Misc.No.6956/2022 Petitioner : Elvis Kayine, S/o Ahachosim, aged (accused No.1) about 44 years, Okija, NGA Nigerian National. Passport No.A08753213 Presently R/at. No.3, 1st floor, OMBR Layout, Chikkabanaswadi, Bengaluru. (By Sri KNS., Adv.) V/S. Respondent : State by Siddapura Police (By Public Prosecutor) O R D E R This is the 2nd bail petition filed by the petitioner U/Sec.439 of Cr.P.C., to enlarge him on bail, in Crime No.132/2022 of Siddapura Police Station registered for the offences punishable U/Section 8(c), 22(c), of N.D.P.S. Act, Sec.14 of Foreigners Act U/S 506, 149, 332, 353 of IPC and Sec 27(A) of NDPS Act.

2. The prevalent grounds urged seeking bail:-

That the petitioner is very innocent and law abiding citizen. He has not committed any offence much less the offence as alleged. He has 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. Petitioner is permanent resident of the address shown in the cause title. The petitioner is ready and willing to abide by any conditions imposed by this court in the event of grant of bail. He is ready to offer surety for his 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 12 grams of MDMA which is a commercial quantity from accused. The said offences are punishable with rigorous imprisonment for a term which shall CCH-33 Crl.Misc.6956/2022 not be less than 10 years which may extend to 20 years and shall also be liable to fine. The investigation is pending. If the petitioner is granted bail he may tamper with the prosecution witnesses. He may involve himself in similar offences. Investigating agency by complying the provisions prevailed under the act has seized the contraband from the petitioner. The petitioner 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 petitioner.

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 petitioner 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:- The PSI of Siddapura PS., has put the

criminal law into motion. The gist of the allegation reads as here under:- On 21.5.2022 at 8.00 pm., when the complainant was discharging his duties in the station he has received credible information that at African cafe, near C.M.R College, 3rd main, Chikkabanaswadi some foreigners are selling narcotic drugs. After receiving the information he has informed to his superior officer obtained permission and he along with panchas and staff went to the said cafe. Around 9.30 pm., when the complainant along with staff proceeded to inspect the cafe the foreigners who were there in the cafe came out and obstructed on duty officials. When the police constables made attempts to apprehend them they started behaving violently by assaulting with hands and bottles. The owner of the cafe was apprehended. When the cash chest of the hotel was checked in that there is 12 grams of contraband. The said article was seized. When the complainant has proceeded to draw spot mahazar the foreigners who were there in the cafe raised slogans against the raiding officer and his team and caused life CCH-33 Crl.Misc.6956/2022 threat to them. They have assaulted the probationary PSI with a beer bottle and one police constable and caused injuries. The petitioner herein is the owner of the cafe. He was arrested. Detail mahazar was drawn and accused was arrested and a detail report is submitted. Basing on the report, a case in Cr.132/2022 is registered for the offence punishable U/Section 8(c), 22(c), of N.D.P.S. Act, Sec.14 of Foreigners Act U/S 506, 149, 332, 353 of IPC and Sec 27(A) of NDPS Act. The accused is produced before the Court and remanded to JC. During voluntary statement of accused No.1, he has revealed that he along with his associates A2 to A7 was doing sale of contraband to the public to gain illegally. In the year 2011 he has been prosecuted in another NDPS case of Ramamurthynagar police station and he was in judicial custody.

8. It is vehemently argued by the learned counsel for the

petitioner that the quantum of contraband seized from the present Petitioner is not commercial quantity, hence, he is entitled for bail. Search and seizure are vitiated by inherent procedural impropriety. The mandatory provisions of law have not been followed thereby causing serious doubt on the investigation, search and seizure procedure. He is no way connected to the drugs which were seized in the case. The major portion of investigation is concluded. Custodial interrogation is not warranted. He is entitled for bail.

9. It is argued by the prosecution that the petitioner has

committed heinous offence and it is punishable with RI upto 20 years. The petitioner may involve in similar offence, if he is released on bail. There are prima­facie material available against him.

10. On careful analysis of rival contentions, the

investigating agency seized 12 grams of MDMA under the seizure panchanama. 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 at Sl.No.134 the narcotic drug – MDMA weighing 10 grams is a CCH-33 Crl.Misc.6956/2022 commercial quantity. In the present case 12 grams of MDMA narcotic substance is seized which is a commercial quantity. The contention of the petitioner that the petitioner is in JC, the major portion of investigation is concluded and his further detention is not warranted is unsustainable, the petitioner herein is apprehended with commercial quantity of contraband by the investigating agency. He is a foreign national. As per the investigation papers, the investigation is in progress.

11. The NDPS Act provides deterrent punishment for

various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. 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 “reasonable grounds” means something more than prima facie 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 while considering an appeal against an order of the High Court allowing the second bail petition of the respondent who was petitioner under the NDPS Act has held that : "5. ………….. Negation of bail is the rule and its grant an exception under sub­clause (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 sub­section (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.” CCH-33 Crl.Misc.6956/2022 In 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 para­20 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 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 drug­ trafficking 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 two­judge 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 ‘possession’ 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 non­application 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 Para­30 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 co­accused; (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 co­accused. CCH-33 Crl.Misc.6956/2022 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. In the dictum of Babua Vs., state of Orissa reported in 2001(2)SCC 566 the Hon'ble Apex Court has held that:­ "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 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 petitioner is not guilty and that he is not likely to commit any offence while on bail. In this case, in all 12 grams of MDMA seized from the accused. At this stage, there is primafacie material available against the petitioner in regard to the possession of narcotic drug. The learned counsel for petitioner has failed to place any material before this court that he was not in possession of NDPS article at the time of his apprehension and search. In the result, I proceed to hold that the petitioner CCH-33 Crl.Misc.6956/2022 herein has not made out any grounds to entertain his plea for bail. Accordingly, I answer point No.1 in the negative.

12. Point No.2:- In the result, I proceed to pass following:

ORDER

The petition filed by the petitioner 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 6th day of August,2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.