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 27th DAY OF JANUARY 2023
Crl. Misc.No.248/2023
Petitioner :
(accused No.2 )
Emanuel Michael,
S/o. Michael Peter,
Aged about 34 years,
Residing at No.6 (12), 2nd Floor,
4th Cross, Kaverinagar,
Hebbal, Bangalore.
(By Sri.Mohd. Mubaraak Adv.)
V/S.

Respondent :
Union of India,
Narcotic Control Bureau,
Bangalore Zonal Unit,
Bangalore.
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.293/2022 of Wilson
Garden PS., registered for the offences punishable U/Sec. 8(c)
and 22(b) of N.D.P.S. Act .

2
Crl.Misc.248/2023
2. The prevalent grounds urged seeking bail:н
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. There is absolutely no mention
about the actual weight of MDMA.

There are no reasonable
grounds to believe that the petitioner has committed the
alleged offences. The petitioner has suffered detentilon of 2
years 1 month and for conclusion of trial it takes long time.
The previoiusbail petitions filed by the petitioner came to be
rejected by this Court as well as HonТble High Court. The
petitioner is having two small children and the children fallen
sick. The children are eager to see the petitioner. The petitioner
is a permanent resident in the address as 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.

3
CCHн33
Crl.Misc.26/2023
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 18 Grams of MDMA from the
accused persons.

The contraband seized is a commercial
quantity. There are sufficient materials available against the
petitioner and the said offences are punishable with rigorous
imprisonment for a term which shall extend to 10 years and
shall also be liable to fine. The investigation is pending. In the
event of his release he may tamper with the prosecution
witnesses. Incriminatory articles were seized from his custody.
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 learned counsel for the petitioner and the
prosecution.

4
Crl.Misc.248/2023
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:н The IONCB is the complainant in the
case. It is alleged in the complaint that,
on 17.12.2020 information was received from a reliable
source that a parcel bearing No.CC089254397NL is lying at
Foreign Post office, Chamarajpet, Bangalore is suspected to be
containing MDMA which is covered under NDPS Act. As per this
information, the NCB team reached the Foreign Post office and
after following the procedure as per law, 610 grams of MDMA
pills were seized from the said parcel.

CCHн33
Crl.Misc.26/2023
5
On
18.12.2020,
based
on
a
secret
and
credible
information two African nationals Emmanuel Michael and
Ramla Shedafa Nancy were intercepted near Sahakarnagar
Post office, who went to enquire about the said parcel bearing
No.CC089254397NL. Both of the accused were summoned to
NCB office to record their statement in connection to seizure of
610 grams MDMA pills. In their voluntary statements recorded
U/s.67 of the NDPS Act, both the accused persons confessed
about their crime. Based on their voluntary statements and
material evidence both the accused persons were arrested for
committing offences U/s.22, 23, 27A, 28, 29 and 32B(a) (d) of
the NDPS Act 1985 on 18.12.2020 and produced before this
Hon’ble Court on 19.12.2020.
During the custodial investigation, it was received that
both the accused persons had booked another drug parcel
bearing No.EG22836800ET which is believed to be containing
cocaine.

Based on this revealation, a team of NCB officers
conducted the seizure procedure as per the NDPS Act at the
Foreign Post office, Chamarajpet, Bangalore and seized 235
6
Crl.Misc.248/2023
grams of offнwhite coloured powder believed to be cocaine
on 21.12.2020, following all the provisions of law. During the
investigation it was also revealed that both the accused
are possessing fake passports and are living in India
illegally.
8. It is vehemently argued by the learned counsel for the
petitioner that petitioner is falsely implicated in the case.
Though the alleged offence is non bailable, but is neither
punishable with imprisonment for life or death sentence.
There are no reasonable grounds to believe that the petitioner
has committed the alleged offences. The petitioner has suffered
detention of 2 years 1 month and for conclusion of trial it takes
long time. The previoius bail petitions filed by the petitioner
came to be rejected by this Court as well as HonТble High
Court. The petitioner is having two small children and the
children fallen sick. The children are eager to see the
petitioner. The petitioner is ready and willing to abide by any
conditions imposed by this court in the event of grant of bail.

CCHн33
Crl.Misc.26/2023
7
He is ready to offer surety for his due appearance before this
court
9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were booked by the
petitioner herein
There are primaнfacie material available
against him.
10.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized
small
and
psychotropic
Department
610 grams of MDMA.
commercial
substance
of
Revenue
quantity
issued
by
As per specification of
of
narcotic
Ministry
Notification
drug
of
S.O.1055(E)
or
Finance
dated
19.10.2001 Sl.No.134 the narcotic drug н MDMA weighing 10
grams is a commercial quantity. In the present case the MDMA
weighing 610 grams seized is a commercial quantity. From the
conscious possession of Aн1 and 2, 610 Grams of MDMA was
seized.
11. The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
8
Crl.Misc.248/2023
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 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
9
CCHн33
Crl.Misc.26/2023
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 nonн
application 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
10
Crl.Misc.248/2023
order does not absolve it of the level of scrutiny required under
Section 37(1)(b)(ii) of the NDPS Act.
12. 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.

13. By making a detail observation in granting the bail to
the accused held to be incorrect 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
CCHн33
Crl.Misc.26/2023
11
circumstances to be considered and has to be evaluated by the
court to consider the bail plea of the accused. 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 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 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 :
12
Crl.Misc.248/2023
“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 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 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 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
13
CCHн33
Crl.Misc.26/2023
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. Here in the present case prosecution has seized
610 grams M.D.M.A. The quantity of contraband
seized is
commercial quantity. At this stage, there is primafacie material
available against the petitioner in regard to the possession of
narcotic drug. 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
herein has not made out any grounds to entertain his plea for
bail. Accordingly, I answer point No.1 in the negative.
14. Point No.2:нIn the result, I proceed to pass
following:н
14
Crl.Misc.248/2023
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 27th day of January, 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.