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 9TH DAY OF DECEMBER 2022
Crl.Misc.No.11827/2022
Petitioner :
(accused No.2)
Infant Suresh, S/o.Joseph Raj, a/a
36 years, R/at No.3, 13th Main, Kulla
Reddy Layout, MICo Layout,
Hongasandra, Begur, Bengaluru
560068
(By Sri V.R.K.Sudhir Adv.)
V/S.
Respondent :
State by Amruthahalli PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.438 of Cr.P.C., is filed by the
petitioner to enlarge him on bail in the event of his arrest in
Cr.No.272/2017 of
Amruthahalli., registered for the offence
punishable U/Sec.20(a) of NDPS Act.
2
2. The grounds urged by the petitioner for grant of bail
are as under:
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.
Complainant has shown this petitioner as accused No.2 in the
aforesaid crime.
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 200 grams of ganja from
the possession of the accused No.1. The accused is found to be
in possession of narcotic substance.
A detailed mahazar is
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CCH33
Crl.Misc.No.11827/2022
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 available against the petitioner. 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
anticipatory 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:
4
REASONS
7.
POINT
NO.1:
Smt.Shashireka.M,
who
is
complainant in this case before the Amruthahalli PS.
the
The
contents of the complaint is here under:
The complainant is living with her children and doing
business. The complainant is known to the petitioner herein.
The petitioner is the childhood friend of the complainant. In
the year 2018 the petitioner has called her to his house and
had molested her and also caused life threat to her. But in
regard to that she has not filed any complaint. On 6.5.2022
Begur Police called the complainant over phone and informed
her that one Infant Suresh is eloped with one Supritha, while
checking the call details of Suresh, the phone No., of
complainant is found and therefore, they have called the
complainant to ascertain about the Suresh. She has informed
the police about the conduct of Suresh with other ladies and
he has shown the house of Suresh to the police.
When the
said Suresh and Supritha were secured by the police, Supritha
has informed the police that she had gone with Suresh
Voluntarily.
5
CCH33
Crl.Misc.No.11827/2022
On 5.11.2022 the complainant has filed a complaint
before the Begur police against the said Suresh alleging
molestation, house trespass, criminal intermediation, verbal
abuse. The said case is registered in Cr.No.277/2022 for the
offences punishable U/s.362, 342, 376, 504, 506 R/w.Sec.34
of IPC.
It is further alleged in the complaint that on
18.11.2022 at 8.30 pm., the said Supritha came to the house
of the complainant and has informed her that Infant Suresh
had wrongfully detained her in his house for a period of 6
months and pestered her by stating that since the complainant
has filed complaint against Suresh because of office friendship
with Supritha. Now, she has escaped from the said house and
on knowing about the address of complainant she came to the
house of complainant. She also told the complainant that she
require the assistance of the complainant to file a complaint
against Suresh. She took Supritha inside the house. The said
Supritha has used the wash room of the daughter of
complainant.
The said Supritha has informed complainant
that if her husband comes to the house of complainant he may
kill her.
During 12.00 mid night the husband of Supritha
6
called and requested her to come back to the house, but she
under threat has not gone to the house.
Thereafter, the
complainant and Supritha have planned to teach a lesson to
the said Infant Suresh.
On the next day, Supritha was
behaving in a very strange manner. On suspicion, when the
complainant checked the bag of Supritha, two packets of ganja
was found in her bag. The weight of the said ganja may be
around 100 grams and there was also a dragon knife in her
purse.
The complainant on apprehension that the said
Supritha is going to plant the contraband ganja and dragon
knife in her house, she has called the Hosyala police
informed them about the contraband and knife.
and
Thereafter,
she has filed the complaint before the jurisdictional police
alleging that Suresh and Supritha have hatched plan to plant
the contraband and dragon knife in her house and to implant
her falsely in a case. Basing on the said complaint, a case has
been
registered
in
Cr.No.272/2022
against
the
present
petitioner and one Supritha alleging or the offences punishable
U/Sec.20(b), (ii)(c) of NDPS Act.
The petitioner is accused
CCH33
Crl.Misc.No.11827/2022
7
No.2 in the case. The petitioner apprehends threat of arrest in
the hands of police.
8.
The petitioner contends that he has been falsely
implanted in the case. The quantum of Ganja seized is 100
grams is a Small quantity. In the event of grant of bail he is
ready to offer solvent surety.
9. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 1 year.
There are sufficient materials available against
the petitioner attracting the alleged crime.
In the event of
grant of bail he would abscond and hamper the investigation.
10.
On collective scrutiny of the rival contentions, the
Investigating agency has seized 100 grams of ganja under the
seizure panchanama. The petitioner apprehends arrest in the
hands of investigating agency. The narcotic substance seized
is 100 grams of Ganja.
As per notification of small and
commercial
narcotic
quantity
of
drug
or
psychotropic
substance issued by Ministry of Finance Department of
8
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 100 grams of ganja which is a small 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.
Prior to the present complaint, the complainant
herein has filed another complaint against the petitioner
CCH33
Crl.Misc.No.11827/2022
9
herein alleging sexual assault. The said case is registered in
Cr.No.277/2022 of Begur PS., for the offences punishable
U/s.362, 342, 376, 504, 506 R/w.Sec.34 of IPC. In the said
case the petitioner herein is prosecuted along with one Vincy
shown to be the wife of petitioner.
anticipatory
bail
dt.28.11.2022.
by
the
court
They have been granted
in
Crl.Misc.11102/2022
It is argued by the learned counsel for the
petitioner that the petitioner has filed a complaint against
complainant in PCR.No.57691/2022 for recovery of a sum of
Rs.14,56,500/ alleging cheating and fraud. The said case is
registered and it is pending on the file of learned Magistrate.
The copy of the order sheet and complaint is produced. The
filing of the complaint for recovery is the reason to falsely
implant the petitioner in the present case.
This is a very
peculiar case where an allegation is made against a lady who is
known to the petitioner alleged to be carrying ganja in the
purse.
But as against the present petitioner there is an
allegation of causing threat, house trespass and colluding with
accused No.1 implanted the drugs and weapon in the house of
complainant. The said offence is not punishable with death or
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imprisonment for life. Here in this case the drugs seized by
the investigating agency to the tune of
100 grams of ganja
which is a small quantity from accused No.1.
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 the prosecution
points towards exceptional circumstances.
The
offence
alleged against the petitioner is not punishable with death or
imprisonment for life. On looking to the allegations, the
petitioner herein alleged to have assisted accused No.1 in
implanting the weapon and contraband in the house of the
complainant.
But there is no direct role of petitioner in the
crime alleged in the prosecution papers.
At the time of
incident petitioner is not present along with accused No.1. On
what date the said articles is supplied to accused No.1 there is
no material. It appears that there is a previous rivalry between
the petitioner herein and the complainant and it appears that
is the basis to prosecute the complainant in the case.
That
apart in another complaint filed by the complainant herein the
petitioner has been granted anticipatory bail by the court.
CCH33
Crl.Misc.No.11827/2022
11
Now there is no material against the petitioner attracting
possession of ganja and weapon. Further there is no material
that he has supplied the said articles to accused No.1 to keep
the said articles in the house of the complainant. Therefore,
custodial interrogation of the petitioner is not warranted in the
circumstances of the case. 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.
12. Point No.2: In the result, I proceed to pass following:
ORDER
The Petition filed by the petitioner U/Sec.438
of Cr.P.C is hereby allowed.
The Petitioner is entitled to be released on bail
in the event of his arrest, in Crime No.272/2017 of
Amruthahalli,
registered
for
the
offences
punishable U/s.20(b) (ii) (c) of N.D.P.S. Act subject
to following conditions.
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1. The Petitioner is directed to appear before the
IO within 1 month from the date of this order.
2. On appearance of the petitioner, he shall be
released on bail on his furnishing a personal
bond for a sum of Rs.50,000/ with one
surety for the like sum to the satisfaction of
the IO.
3.
The petitioner shall not threaten or try to
tamper with the prosecution witnesses in any
manner.
4.
The petitioner shall cooperate with I.O for
due investigation in the case.
5. The petitioner shall not leave the jurisdiction of
the court without prior permission.
[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 9th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*