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 8th Day OF SEPTEMBER 2022
Crl. Misc.No.8122/2022
Petitioner :
(accused No.1)
Jawad Ur Rahman, S/o.late Haseeb
Ur Rahman, 28 years, No.46, 2nd
Cross, 2nd Stage, Pillana Garden,
Near Taj Beauty Parlour, Nagwar
Main road, Bangalore 45.
(By Sri MRSV., Adv.)
V/S.
Respondent :
State by Ashoknagar PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by
the petitioner to enlarge his on bail, in Cr.No.214/2022 of
Ashoknagar PS., registered for the offences punishable
U/Sec.8(c), 22(b) of N.D.P.S. 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 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 no
restriction U/Sec.37 of N.D.P.S. Act for grant of bail.
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 4 grams of MDMA crystal
seized from accused. The offences alleged against the
petitioner is punishable with rigorous imprisonment upto 10
years and shall also be liable to fine. There is a primafacie
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case available against the petitioner. He is a 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 his 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
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7. POINT NO.1: The complainant who is the PI,
Ashoknagar PS., Bangalore has put the criminal law into
motion. The gist of the allegation reads as here under:
The complainant is the PSI., of Ashoknagar PS on
27.7.2022 at 20.00 hours when he was discharging duties
in the station, he has received credible information through
PSI., Mallikarjuna N C that one person approached the PSI
Mallikarjuna and informed him that some unknown person
who is standing at Hosur Main road Johnson market
speaking in Urdu and Hindi language over mobile calling
upon another person stating that whether the receiver
would require MDMA powder. The said caller was in
possession of a plastic cover containing white powder
MDMA. PSI Mallikarjuna gave the said information to PSI
Ramesh NS of Ashoknagar police station. A suomoto case
is registered against the unknown persons for the offence
punishable U/s,8(c), 22 B of NDPS Act.
complainant
PSI
has
informed
the
Commissioner of Police Cubbon park
Therefore, the
matter
to
Asst.
obtained written
permission to conduct raid. He went along with staff and
panchas to the spot and found the person moving
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Crl.Misc.No.8122/2022
suspiciously when the said person was apprehended on
enquiry he has revealed his name and address.
He was
found to be in possession of 5 plastic covers containing
white colour MDMA powder weighing 4 grams, a plastic
cigar like pipe. On further enquiry he has revealed that he is
doing the sale of MDMA powder for the past two years. He
was purchasing the said contraband from one Umraj, Rehan
and Faijan of KG Halli. The said contraband which is in the
possession of petitioner herein was seixed under detail
mahazar.
The petitioner was arrested.
The complainant
has prepared a detail report. The petitioner was produced
before the court and remanded to judicial custody. A detail
report was prepared and submitted to PI of Ashoknagar PS.
The present petitioner is accused No.1 in the case.
8. The prosecution has contended that the custodial
detention of petitioner is further required as accused Nos.1
to 4 have to be apprehended.
CDR details should be
collected. In the event of grant of bail he may abscond and
prolong the investigation and trial of the case. The offence
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alleged
against
the
petitioner
is
punishable
with
imprisonment up to 10 years and it is non bailable.
9.
The learned counsel for petitioner vehemently
argued that the investigating officer has not followed the
search and seizure procedures.
bread earner of family.
The petitioner is the only
If he is not enlarged on bail his
family would be put to untold hardship. Further the
quantum of contraband is intermediate quantity. He is
entitled for bail.
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 04 grams of MDMA crystal seized from
accused under the seizure panchanama. The petitioner is
in judicial custody since the date of his arrest i.e., from
27.7.2022.
On looking to the seizure panchanama the
drugs seized is weighing 04 grams of MDMA crystal seized
from accused. 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.134 the narcotic
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Crl.Misc.No.8122/2022
drug MDMA weighing 10 grams is a commercial quantity.
In the present case, MDMA crystal seized is 04 grams which
is 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 is intermediate quantity. The accused
herein is not having previous criminal antecedents. He is
not an habitual offender. The major portion of investigation
in the case is concluded as the incriminatory article is
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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 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.439 of Cr.P.C is hereby allowed.
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.
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Crl.Misc.No.8122/2022
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.
with
I.O
for
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
hearing dates without fail.
8. Breach of any of the conditions by the
petitioner would entail cancellation of
bail.
[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 8th day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*