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 22nd DAY OF DECEMBER 2022
Crl.Misc.No.12388/2022
Kanayo Josiah, S/o.Okaka, a/a 45
years, No.223, Shanthi Shopping
Complex, Near Mira Road Station,
Nallasupara East, Vasai, Mumbai.

Petitioner :
(Accused No.9)
(By Sri. Viswanatha.K.S.
Adv.)
V/S.
Respondent :
State by Amruthahalli PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner
to
Amruthahalli
enlarge
PS.,
him
on
registered
U/Sec.22(B) of N.D.P.S. Act.

bail,
for
in
the
Cr.No.253/2022
offences
of
punishable
2
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner has never committed or involved in
the alleged crime either directly or indirectly but he is been
falsely implicated in the above case. The voluntary statement is
recorded by the police at their whims and fancies to suit their
case. The seizure of Cocaine and Ecstasy Pills from the
possession of the petitioner is concocted to suit the purpose
and the implicated after the date of incident. No incriminating
articles were recovered after getting the custody of the present
petitioner.

The mandatory provisions of search and seizure
has not been complied. 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. Hence, sought to grant bail.
3. The objection raised by the prosecution is that the
investigating agency has seized 3 grams of Cocaine and 15
3
CCH­33
Crl.Misc.No.12388/2022
Ecstasy Pills from the possession of petitioner herein.
petitioner is found to be in possession of narcotic drug.

The
A
detailed mahazar is drawn in the spot. Personal search is
conducted. The offence alleged against the petitioner is
punishable with rigorous imprisonment for a term which may
extent upto 10 years. There is a prima­facie case available
against the petitioner. He is habitual drug dealer. 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.
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:
4
REASONS
7.

POINT
NO.1:­
A
report
submitted
by
ASI,
Amruthahalli., who is the complainant in this case before the
Amruthahalli PS. The contents of the report is as here under:­
On 20.10.2022 at about 4.30 pm., the complainant has
received an information through an informant through the ACP
of Sampigehalli that at Lumbini Garden, Service road within
the limits of Amruthahalli police station., two persons are
selling cocaine and ecstasy pills to the public. On receipt of
the information as the PSI of the said jurisdiction was on some
other duty, ASI along with staff and panchas had been to the
spot and found the suspected persons. They were carrying
bags. On enquiry they have revealed their names and
addresses.

On questioning the contents of bag they have
stated that they are possessing three grams of cocaine and 15
ecstasy pills.

On search of the bags they found 3 grams
cocaine and 15 ecstasy pills.

Thereafter, a detail seizure
panchanama was drawn. A detail report was prepared &
CCH­33
Crl.Misc.No.12388/2022
5
submitted before SHO which is the basis to register the case
against the accused Nos.1 & 2 in
Cr.No.253/2022 of
Amruthahalli
offence
PS
registered
for
the
punishable
U/Sec.22(b) of NDPS Act and Sec.14 of Foreigners Act.
Thereafter the accused were arrested and produced before
jurisdictional Magistrate and were remanded to JC.
During voluntary statement of accused No.1 he has
stated that the A3 is one of his customer, he was purchasing
contraband from him and resell the same.

Further, on
16.10.2022 the accused No.3 had purchased 15 ecstasy pills
from accused No.1. On 25.10.2022 at about 2.30 pm.,
complainant has arrested the A3.

On 30.10.2022 A5 was
arrested. During voluntary statement he has stated that he is
in possession of cocaine.

He has shown the house to the
investigating agency which is situated in house bearing No.85,
Near
Ammani
Lake,
Sai
Green
wood
Layout,
Singanayakanahalli Post, Yelahanka, Bangalore. When he was
taken to the house, in the second floor the said cocaine was
taken out by the accused No.5 and handed over to the police.

6
He has also produced one weighing machine. The cocaine was
weighing 4 grams. A detail mahazar has been drawn in the
spot. His bank details were also collected. His voluntary
statement came to be recorded. In the voluntary statement he
has revealed that he had purchased the contraband from one
Matha. He has purchased huge quantum of drugs from Matha.
Accused No.5 has given the mobile No., and details of the
accused Matha. Basing on the information provided by
accused No.5, accused No.6 is apprehended on 3.12.2022 at
No.34, B56, 16th Sector, Krishna Palace, Ulvi Navi Mumbai.
she is produced before the local Magistrate.

Under transit
warrant she is produced before the jurisdictional magistrate at
Bangalore.

She was taken to police custody for 7 days.

During police custody her voluntary statement came to be
recorded. In her statement she has stated that accused No.5
has purchased contraband from her.

She used to sell the
contraband to accused No.5 on several occasions and she has
received money from accused No.5. She has also stated that
she has purchased contraband from the present petitioner for
CCH­33
Crl.Misc.No.12388/2022
7
lesser price and is selling the same to other customers for
higher price. She has sold contraband to Benjamin @ Gerald
@ Bob i.e., accused No.5. Basing on the statement of accused
No.6, the present petitioner who is shown as accused No.9 is
arrested at Nevi Mumbai, from his residence on 7.12.2022. He
is
produced
Magistrate.

under
transit
warrant
before
He was taken to police custody.

the
learned
His statement
came to be recorded. At the instance of present petitioner no
contraband is recovered. His mobiles were sized, CDRs., were
collected. He is produced before the court and remanded to
judicial custody.

8. It is argued by the learned counsel for petitioner that
he has planted in the case by the complainant police he is
unaware of seized drug. 3 grams of Cocaine and 15 Ecstasy
Pills is seized from the possession of the accused Nos.1 and 2
is not commercial quantity. The mandatory provisions of
Sec.41, 42, 50, 52 and 47 of the Act are not complied. He is
permanent residents of the address given in the cause title. In
8
the event of grant of bail 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 and with fine. 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 3 grams of Cocaine and 15 Ecstasy Pills under
the seizure panchanama from accused Nos.1 and 2. basing on
the voluntary statement of accused No.6, present petitioner is
arrested by the investigating agency on 7.12.2022 at Navi
Mumbai. Accused No.6 has stated that she has purchased
contraband from the present petitioner, but during the
interrogation of present petitioner no contraband is recovered
at his instance. The petitioner is in judicial custody since the
date of his arrest i.e., from 8.12.2022.

On looking to the
CCH­33
Crl.Misc.No.12388/2022
9
seizure panchanama the drugs seized is weighing 3 grams of
Cocaine and 15 Ecstasy Pills from accused Nos.1 and 2. 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. Sl.No.27 the narcotic drug – Cocaine 02
grams is small quantity and 100 grams is commercial
quantity. In this case the quantum of Cocaine seized from
accused Nos.1 & 2 is 03 grams which is intermediate quantity.
Likewise, at Sl.No.134 the narcotic drug­MDMA 0.5 grams is
small quantity and 10 grams., is commercial quantity. On
going through the police report and the detail mahazar drawn
in the case the contraband seized in the case is 15 ecstasy
pills. But in regard to the quantum of ecstasy pills is no where
mentioned in the prosecution papers. Though this court has
directed the IO., to produce the detail report about the weight
of the contraband ecstasy pills, but he has failed to produce
any report before the court. Therefore, to ascertain whether the
contraband contraband 15 ecstasy pills seized in the case is a
10
commercial quantity there is no document placed by the IO.
Though the petitioner is arrested pertaining to drug peddling
by accused Nos.1 and 2, no seizure of contraband is effected
at the instance of present petitioner.

His phone is already
seized by the investigating agency. His voluntary statement is
already recorded. His further custodial detention is not
warranted in the circumstances of the case.

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
CCH­33
Crl.Misc.No.12388/2022
11
circumstances, as per the observations of Hon’ble Apex Court
the bail plea of accused to be considered.

12. 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.

13.

The
petitioner
herein
is
not
having
previous
criminal antecedent. He is not a habitual offender. 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
12
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.
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 their photo ID proof and
photo ID proof of their sureties.

7.

They shall appear before the court on all
hearing dates.

with
I.O
for
13
8.

CCH­33
Crl.Misc.No.12388/2022
Breach of any of the conditions by the
petitioner would entail cancellation of bail.

(Dictated to the stenographer, directly on the computer, typed and
computerized by her, corrected, signed and then pronounced by me in
Open Court on this the 22nd day of December, 2022].

(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*