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 5th DAY OF DECEMBER 2022
Crl. Misc.No.10744/2022
Petitioner :
(accused No.4)
Imran Pasha, S/o.Chan Pasha , a/a
20 Yrs, No.223 , 2nd Main Road, 10th
Cross, Mysore Road, Valmiki Nagar,
Bengaluru South, Government
Electric Factory, Bengaluru560026
(By Sri.S.I.Z., Adv.)
V/S.
Respondent :
State of Karnataka by K.G Nagar
Police
(By Public Prosecutor)
ORDER
This the second bail petition U/Sec.439 of Cr.P.C., filed
by the petitioner to enlarge him on bail, in Cr.No.134/2022 for
the offence punishable U/Sec.20(b)(ii)(c) and 27 A of N.D.P.S.
Act.
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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. The quantity seized from the
possession of the petitioner is less than commercial quantity.
What has been allegedly seized by the respondent police is dry
seeds and leaves, which is not ganja as per Section 2(iii) (b) of
NDPS Act. 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 506 Kg, 700 grams of ganja
which is a commercial quantity. There are sufficient material
available against the petitioner, and the said offences are
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punishable with rigorous imprisonment for a term which shall
not be less than 10 years which may extend to 20 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.
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:
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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 K.G Nagar PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On 12.09.2022 at about 1.00 p.m,, the complainant was
in the police station he has received an information that at
Nanjmbaha Agrahara, Kempambudhi lake North gate, KG
Nagar, Bangalore a lady along with 45 persons is selling ganja
to the public.
On receipt of the information he has made a
note in the station house diary, informed the matter to higher
official, obtained the permission to conduct raid. Thereafter,
the complainant along with his staff and panchas had been to
the spot at around 2.20 pm., and mounted in the spot and
found an auto rickshaw and a two wheeler. The persons who
were there in the auto rickshaw were trying to sell the
contraband to the public. A decoy was sent by the complainant
towards the said suspected persons. The decoy had signaled,
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immediately the complainant and and his staff surrounded
them and on enquiry the said persons have revealed their
names and addresses. They were questioned about the
contents of the bag.
They have stated that they are selling
ganja to the public. The contents of the bag was like ganja
balls, leaves and dry ganja and on weighing the same the total
weight of the contraband is 66 Kgs., 700 grams.
The voluntary statement of the accused persons was
recorded. In the voluntary statement of the accused persons
they have stated that they had purchased huge quantum of
ganja from one Eju and Chandu of Andhra Pradesh and stored
in the house of accused No.3. On conducting raid of the house
of accused No.3 they further seized 440 Kgs., of ganja.
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 Sec.41, 42, 50, 52 and
47 of the Act are not complied. He is permanent resident of the
address given in the cause title. In the event of grant of bail
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he is ready to abide by the conditions which are being imposed
by this court.
9. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 10 years.
In the event of grant of bail he is going to
abscond and may hamper investigation.
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 506 Kg, 700 grams of ganja under the seizure
panchanama from accused No.1 to 4 which was being carried
in a Tata ACE vehicle. On looking to the seizure panchanama
the drugs seized is weighing 506 Kg, 700 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 506 Kg, 700 grams which
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is a commercial quantity.
The present petitioner is accused
No.4 in the case.
11. On looking to the prosecution papers the quantum
of narcotic substance seized 506 Kg, 700 grams of Ganja. 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.104134/2021 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
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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 drugtrafficking 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.
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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 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.
By making a detail observation in granting the bail to the
accused held to be 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
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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
“reasonable grounds” 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 :
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“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 are not guilty of the
offences with which they are charged and further that they
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 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.”
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 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 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 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 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
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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
are not guilty and that he is not likely to commit any offence
while on bail.
Here in the present case the petitioner was
apprehended and 506 Kg, 700 grams of ganja was seized from
the vehicle of petitioner and other accused. The quantity of the
contraband is commercial quantity. At this stage, there are
primafacie materials available against the petitioner in regard
to the possession of narcotic drug. 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.
13. Point No.2: In the result, I proceed to pass following:
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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 5th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.