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 27 th Day OF JUNE 2022
Crl. Misc.No.5973/2022
Petitioner :
(accused No.1)
Kannte Remon, s/o Kante sunday,
aged about 30 years, R/at No.17,
Omotosho Street, agege city,
Conakry, Guinee, West Africa.
Present R/at
C/o Saint Mark Catholic church, J.P
Nagar, Bengaluru,
(By Sri H.S.I , Adv.)
V/S.
Respondent :
State by Indiranagar Police
Station
(By Public Prosecutor)
OR 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.118/2022 of
Indira
2
Nagar 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.
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Crl.Misc.No.5973/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 07 grams of narcotic
substance MDMA and 04 grams of Cocaine from accused. The
offence alleged against the petitioner is punishable with
rigorous imprisonment upto 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:
4
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, Indira
Nagar PS., Bangalore has put the criminal law into motion.
The gist of the allegation reads as here under:On 12.06.2022 at about 2.45 pm., when the complainant
was in the station he received credible information that one
South African person is selling contraband to the public at
Indiranagar Defence colony, 6th main road in a play ground.
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 at around 3.30 pm.
The
informant has shown the said suspected person who was
taking out a plastic cover from his pant pocket and was
showing the white colour powder to another person.
When
they tried to surround the said two persons, one person ran
away from the spot. The other person who was there holding
the packet was apprehended. On enquiry he has revealed his
name and address as Kante Remon, S/o.Kante Sunday and he
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Crl.Misc.No.5973/2022
5
is from West Africa. He has also referred the name of other
person as one Karthik and further revealed that he is
possessing MDMA and cocaine which is a prohibited drug. He
was supposed to sell the same to the said Karthik and receive
money.
On search of accused No.1 the investigating agency
has seized 7 grams of MDMA and 4 grams of Cocaine from the
accused. At the time of raid the accused was standing in the
spot along with his bike.
Thus, along with the contraband,
bike, plastic covers, mobile phones and cash of Rs.1000/- were
seized.
Detail report was prepared and submitted to SI of
Nelamangala rural PS. Basing on the said report the case in
Cr.No.118/2022
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.
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.
6
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 7 grams of MDMA and 4 grams Cocaine under
the seizure panchanama. The petitioner is in judicial custody
since the date of his arrest i.e., from 12.06.2022. On looking
to the seizure panchanama the drugs seized is weighing 7
grams of MDMA and 4 grams of Cocaine. As per specification
of small and commercial quantity of narcotic drug or
psychotropic
Department
substance
of
Revenue
issued
by
Ministry
Notification
of
S.O.1055(E)
Finance
dated
19.10.2001 at Sl.No.134 the narcotic drug MDMA weighing
10 grams is a commercial quantity. In the present case 7
grams of MDMA narcotic substance is seized which is an
intermediate quantity. Likewise, as per Sl.No.27, the narcotic
drug – Cocaine weighing 100 grams is commercial quantity. In
the present case 4 grams of Cocaine seized is intermediate
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CCH-33
Crl.Misc.No.5973/2022
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.
The offence alleged against the petitioner is not punishable
8
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.
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3. He shall not tamper the witness or
abscond.
4.
He shall co-operate
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
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 27th day of June 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*