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 20 th Day OF JULY 2022 Crl. Misc.No.6780/2022 Petitioner : John Nero, s/o M. Michel. Aged (accused No.1) about 26 years, R/at No.640, 2nd cross, Rainbow layout, Vaderahalli, Bengaluru (By Sri D.P , Adv.) V/S. Respondent : State by Vidyaranyapura Police Station (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioner to enlarge him on bail, in Cr.No.135/2022 of Vidyaranyapura PS., registered for the offence punishable U/Sec.8(c), 22(b) of N.D.P.S. Act and Sec.14 of Foreigners Act.
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 08 grams of narcotic substance MDMA from accused. The offence alleged against the petitioner is punishable with rigorous imprisonment upto CCH-33 Crl.Misc.No.6780/2022 10 years and shall also be liable to fine. There is a primafacie 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
7. POINT NO.1:- The complainant who is the PSI., of
Vidyaranyapura PS., Bangalore has put the criminal law into motion. The gist of the allegation reads as here under:- On 18.06.2022 at about 3.00 pm., when the complainant was in the station he has received credible information that in the house No.640, 2nd cross, Rainbow layout, Vaderahalli, Bengaluru limits one Nigerian national is selling narcotic drugs to customers. He has immediately informed the matter to his higher officer, obtained permission to conduct raid. He along with his staff and panchas has been to the spot and found one Nigerian national inside the house. On enquiry he has revealed his name. On search of the house they found 8 grams of MDMA. The same was seized under mahazar. Detail report was prepared and submitted to SHO. Basing on the said report the case in Cr.No.135/2022 registered for the offence punishable U/Sec.8(c), 22(b) of N.D.P.S. Act and Sec.14 of Foreigners Act. Accused was arrested and produced before the court. CCH-33 Crl.Misc.No.6780/2022
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. Therefore, NDPS Act is not applicable.
9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drug was seized from his custody. There are primafacie material available against her.
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating agency seized 8 grams of MDMA under the seizure panchanama. The petitioner is in judicial custody since the date of his arrest i.e., from 18.06.2022. On looking to the seizure panchanama the drugs seized is weighing 8 grams of MDMA. 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 drug MDMA weighing 10 grams is a commercial quantity. In the present case 8 grams of MDMA narcotic substance is seized which is 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 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 already seized. CCH-33 Crl.Misc.No.6780/2022 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.
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 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 co-operate with I.O for investigation.
5. He shall not commit similar offence or any offence while on bail.
6. He shall furnish his photo ID proof 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.
9. He shall surrender his passport before the court.
[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 20th day of July 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*