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 12th DAY OF JANUARY 2023
Crl.Misc.No.12753/2022
Petitioner :
(accused)
Ganesh @ Gani, S/o.Murthy, 21
years, 3rd Cross, Near Anjaneya
Temple, Nandini Layout, Bengaluru.
(By Sri MKG., Adv.)
V/S.
Respondent :
State by Kamakshipalya PS
(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.489/2022 of
Kamakshipalya PS., registered for the offence punishable
U/Sec.8(c), 20(b) of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
2
That the petitioner is very innocent and law abiding
citizen. He has not committed any offence much less the
offence as alleged.
He has no knowledge of alleged crime
and falsely implanted at the instance of extraneous
elements.
The mandatory provisions U/s.50 of NDPS Act
has not been complied. Though the alleged offence is non
bailable, but is neither punishable with imprisonment for
life or death sentence. 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. He has no bad antecedents.
He is the sole bread earner of his family. Hence, sought to
grant bail.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 1 Kg., 100 grams of
ganja from the possession of the accused. The accused is
found to be in possession of narcotic substance. A detailed
mahazar is drawn in the spot.
Personal search is
conducted. The offence alleged against the petitioner is
punishable with rigorous imprisonment for a term which
shall extend upto 10 years. There is a primafacie case
CCH33
Crl.Misc.No.12753/2022
3
available against the petitioner.
dealer.
He is an habitual drug
In the event of grant of bail, he would abscond and
may hamper the investigation. Hence, sought to reject the
bail plea of 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 Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: A report submitted by PSI, ., who is
the complainant in this case before the Kamakshipalya PS.
The contents of the report is as here under:
On
16.12.2022
at
about
3.30
pm.,
when
the
complainant was in the station he has received credible
4
information that in a vacant space near Temple, Bajaj
Ground, near Sunkadakatte market a person is trying to sell
ganja to the public. On confirming about the information he
along with staff and panchas had been to the spot. Prior to
his visit to the spot he has obtained permission from his
higher officer to conduct raid. He along with his team had
been to the spot and mounted
surveillance therein.
Suspected person was found in the spot.
surrounded and apprehended.
He was
On checking the bag they
were found to be carrying ganja which was weighed.
The
weight of ganja came around 1 Kg., 100 grams. The ganja
was seized under a detail mahazar.
A detail report was
prepared and submitted before SHO. Basing on the report,
a case in Cr.489/2022 is registered for the offence
punishable U/s.8(c) , 20(b) of NDPS Act. Thereafter accused
was arrested and produced before jurisdictional Magistrate
and remanded to judicial custody.
8. It is argued by the learned counsel for petitioner
that he is planted in the case by the complainant police he
is unaware of seized drug. The seized article is not
commercial quantity.
The mandatory provisions of search
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Crl.Misc.No.12753/2022
5
and seizure is not complied. He is the permanent resident
of the address given in the cause title. In the event of grant
of bail he is ready to abide by the conditions which are being
imposed by this court.
9. It is argued by the prosecution that the petitioner
has committed heinous offence 1 Kg., 100 grams of ganja
is seized from the petitioner and other accused. The offence
punishable with imprisonment upto 10 years and with fine.
There are primafacie material available against them.
10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
16.12.2022
apprehended
complainant
accused.
has
On
conducted
looking
to
raid
the
and
seizure
panchanama the drugs seized from accused is weighing 1
Kg., 100 grams of ganja. 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
Sl.No.55 the narcotic drugganja 1000 grams is small
quantity and 20 Kgs., is commercial quantity. In this case
the quantum of ganja seized is 1 Kg., 100 grams of ganja is
6
an intermediate quantity. As per the decision of Hon’ble
Apex Court reported in 2018 11 SCC 488 Birbal Prasad
Vs., State of Bihar wherein it is held that:
Ss.37 and 20 – Bail – grant of – non commercial quantity
– quantity involved being only 14 Kgs., of ganja, which is
a non commercial quantity appellant accused not involved
in any other case – in above circumstances, held,
appellant should be released on bail, pending trial –
hence, directions issued to release appellant on bail, on
certain conditions.
The said case law aptly applies to the case on hand in
holding that the contraband seized in the case on hand is
intermediate quantity and it is not commercial quantity. In
the said circumstances, as per the observations of Hon’ble
Apex Court the bail plea of accused to be considered.
11.
Here in this case the drugs seized by the
investigating agency to the tune of
1 Kg., 100 grams of
ganja which is an intermediate quantity. When the quantity
is less than commercial quantity, rigors of Sec.37 of the
NDPS Act will not attract, and factors become similar to bail
petitions
under
regular
statues
normal,
unless
prosecution points towards exceptional circumstances.
the
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Crl.Misc.No.12753/2022
7
12. The major portion of investigation in the case is
concluded as the incriminatory article is already seized from
accused.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
Further
custodial interrogation is not warranted. His Voluntary
statement is already recorded. As per the information
provided by the petitioner he is permanently residing in the
address shown in the cause title. The apprehension of the
prosecution that he may abscond and may protract the trial
could be compensated by imposing stringent conditions. In
the result, I answer the point for consideration in the
affirmative.
13. 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 allowed.
The
petitioner
executing
personal
is
enlarged
bond
for
on
a
bail
on
sum
of
Rs.1,00,000/ with two sureties for the like sum
with following conditions.
1.
The petitioner shall give attendance before
the concerned I.O., once in a month i.e.,
preferably on first Monday of every month in
8
between 10.00 am., to 2.00 pm., till filing of
charge sheet or further orders whichever is
earlier.
2.
He shall not leave the jurisdiction of this
court without prior permission.
3.
He shall not tamper the witness or abscond.
4.
He
shall
cooperate
investigation.
5.
He shall not commit similar offence or
any offence while on bail.
6.
He shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties.
7.
He shall appear before the court on all
hearing dates.
8.
Breach of any of the conditions by the
petitioner would entail cancellation of bail.
with
I.O
for
[Dictated to the stenographer, directly on the computer, typed by
her, corrected, signed and then pronounced by me in Open Court on
this the 12th day of January 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.