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 6TH DAY OF DECEMBER 2022
Crl. Misc.No.11408/2022
Petitioner :
(accused No.2)
Irfan Pasha, S/o.Sardar, a/a 26
years, No.13, Joseph Garden, Near
Ghouse Medical, Modi Road,
D.J.Halli, Bengaluru560045
(By Sri.Narayana Swamy.M, Adv.)
V/S.
Respondent :
State by D.J.Halli PS.
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner/accused
No.2
to
enlarge
him
on
bail,
in
Cr.No.386/2022 of D.J.Halli PS., registered for the offence
punishable U/Sec.22(c) of NDPS Act and Sec 14 Foreigners Act
and Sec 12 of Passport Act..
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2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is 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 offences are non bailable, but is
neither punishable with imprisonment for life or death
sentence. The petitioner is not arrested at the spot. He has
been implanted basing on the voluntary statement of accused
No.1.
He is arrested on 12.11.2022 and 6 grams of MDMA
seized from his residence which is intermediate in quantity.
The procedure contemplated under N.D.P.S. Act not followed
while recovery.
The 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 40 Grams of Ecstasy Pills
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Crl.Misc.No.11408/2022
and 6 Grams of MDMA from the accused Nos.1 and 2. The
offences alleged against the petitioner is punishable with
rigorous imprisonment for a term upto 20 years and shall also
be liable to fine. There is a primafacie case available against
the petitioner. He is habitual drug dealer. There is primafacie
case made out against petitioner. If petitioner is released on
bail, he will continue the profession of narcotic drug selling,
and he may abscond and tamper evidence of the prosecution.
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:
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REASONS
7. POINT NO.1: The PSI, D.J.Halli PS., Bangalore has
put the criminal law into motion.
The gist of the allegation
reads as here under:
On 08/11/2022 at about 12.00 pm., the complainant
has received an information through an informant that at
Shampura Main Road Railway gate one foreign National would
come to sell MDMA and Ecstasy Pills. On receipt of the
information, he has informed the matter to the higher officer ,
obtained permission to conduct raid. He along with panchas
and staff had been to the spot and mounted surveillance in the
spot. Around 12.10 noon a foreign national came there he was
apprehended and questioned. On enquiry he has revealed his
name and address. On questioning the contents of bag he has
stated that he is in possessing Ecstasy tablets.
When the
contents of the bag was taken out there were 97 ecstasy
tablets weighing 40 grams. On further enquiry accused No.1
has stated that he is not in possession of passport and Visa.
Thereafter, a detail seizure panchanama was drawn. The
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Crl.Misc.No.11408/2022
accused No.1 is arrested and produced brought to the Police
Station. A detail report was prepared & submitted before SHO
which is the basis to register the case against the accused No.1
in Cr.No.386/2022 of D.J.Halli PS registered for the offenses
punishable U/Sec.22(c) of NDPS Act and Sec 14 Foreigners Act
and Sec.12 of Passport Act. Thereafter the accused No.1 was
produced before jurisdictional Magistrate and were remanded
to JC.
Basing
on
the
voluntary
statement
of
accused
No.2/present petitioner is arrested on 11.11.2022 at Modi
road, Joseph garden, Ghouse medicals, DJ HALLI, Bangalore.
When the house of accused No.2 is searched 6 grams of MDMA
is seized from his house. He is arrested and produced before
the court and remanded to Judicial Custody. Accused No.2 is
the present petitioner in the case.
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
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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 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 40 Grams of Ecstasy Pills and 6
Grams of MDMA is seized from the accused No.1 and
petitioner herein. The offence is punishable with imprisonment
upto 10 years and with fine.
There are primafacie material
available against him.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that PSI,
D.J.Halli police station has conducted raid and apprehended
the accused No.1. Basing on the voluntary statement of
accused No.1, present petitioner is arrested. At the instance of
accused No.1 40 grams of ecstasy pills is seized.
From the
house of present petitioner 6 grams of MDMA is seized. As per
specification of small and commercial quantity of narcotic drug
or psychotropic substance issued by Ministry of Finance
CCH33
Crl.Misc.No.11408/2022
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Department
of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001 at Sl.No.134 the narcotic drug – MDMA 0.5 grams
is small quantity and 10 grams is commercial quantity. In this
case the quantum of MDMA seized from accused No.2/present
petitioner is 06 grams which is intermediate quantity.
11. 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 MDMA, 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.
12. Here in this case the drugs seized by the investigating
agency to the tune of 6 grams of MDMA. When the quantity is
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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.
13.
The major portion of investigation in the case is
concluded as the incriminatory article is already seized. The
offence alleged against the petitioner is not punishable with
death or imprisonment for life. Further custodial interrogation
is not warranted.
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.
14. 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.
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Crl.Misc.No.11408/2022
The petitioner is enlarged on bail on executing
personal bond for a 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
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
petitioners would entail cancellation of
bail.
with
I.O
for
[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 December, 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
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