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 JULY 2022 Crl.Misc.No.6772/2022 Petitioner : Kashif Abdullah Shaikh, S/o Shaik (accused) Abdullah, aged about 27 years, R/at 2nd floor, Oppo.Bharath Petrol bank, Tanniruhalla, Hassan. (By Sri G.G.G., Adv.) V/S. Respondent : The Intelligent Officer, Directorate of Revenue Intelligence, Bengaluru Zonal Unit, No.8(2)P, Opp BDA Complex HBR Layout, Kalyanagar Post, Bengaluru – 560043. (By Spl.Public Prosecutor) O R D E R This is the third bail petition filed by the present petitioner U/Sec.439 of Cr.P.C., to enlarge him on bail, in F.No.DRI/ BZU/ SIV ENQ-27/ (IINT NIL 221) registered for the offences punishable U/Sec.8(c), 20 of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:-

That the petitioner is very innocent and law abiding citizen. He has not committed any offence much less the offence as alleged. No proof to connect him in the case. It is only an assumption and presumption. 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. Investigation is concluded and final report is filed. Further detention is not required. The prosecution made no attempt to ascertain the actual quantum of ganja in the package. A false complaint against him. If he is detained in the Central prison his career will be spoiled in the midst of the other criminals in the prison. The contraband seized is not commercial quantity. 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 CCH-33 Crl.Misc.No.6772/2021 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 122.60 kgs. of ganja which is a commercial quantity. There are sufficient material available against the petitioner, and the said offences are punishable with rigorous imprisonment for a term which shall not be less than 10 years which may extend to 20 years and shall also be liable to fine. The investigation is pending. In the event of his release he may tamper with the prosecution witnesses. Incriminatory articles were seized from his custody. The supplier of drug is absconding. He has to be traced. He may involve himself in similar offences. Investigating agency by complying the provisions prevailed under the act has seized the contraband from the petitioner. The petitioner herein would sell the drugs to the younger generation which may ruin the career of younger generation. With these specific pleas sought to reject the bail plea of the petitioner.

4. Heard learned counsel for the petitioner and the

prosecution.

5. The points that arise for my consideration are as

here under: 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 Negative Point No.2: As per the final order for the following:

REASONS

7. POINT NO.1:- The Intelligence Officer of DRI, has

put the criminal law into motion. The gist of the allegation reads as here under:- On 22.8.221, the IO., DRI., Bangalore received credible information that there is transport of huge quantity of narcotic substance. Based on the said information the IO., intercepted one vehicle of Ashok Leland brand of model “Dost” bearing No.KA 13 C 8250 at Hoskote toll Plaza at CCH-33 Crl.Misc.No.6772/2021 around 1.15 hours. On interception it was found that the said vehicle was loaded with blue colour plastic drums. During thorough search and examination of drums they found 53 packets with pungent smell suspected to be ganja concealed in the drugs. In total 122.6 Kgs., of contraband narcotic substance having market value of Rs.30,65,000/- was recovered from the said vehicle. The accused were caught red handed in possession of narcotic substance while they were illegally transporting the same from Tuni (Andhra Pradesh) to Mangalore via Bengaluru. The said narcotic substance was recovered from the vehicle of accused No.1 which was driven by accused No.1. The same was seized, accused were arrested and a detail report is submitted. Basing on the report, a case in DRI/BZU/S- IV/ENQ-27/(INT-NIL/2021 is registered for the offence punishable U/s.8(c) and 20 of NDPS Act.

8. It is vehemently argued by the learned counsel for

the petitioner that search and seizure are vitiated by inherent procedural impropriety. The mandatory provisions of law have not been followed thereby causing serious doubt on the investigation, search and seizure procedure. He is no way connected to the drugs which were seized in the case. The investigation is concluded. Final report is filed. The total quantum of contraband of ganja is not segregated. Custodial interrogation is not warranted. He is entitled for bail.

9. It is argued by the prosecution that the petitioner

herein and accused No.1 were caught red handed in possession of narcotic substance while they were illegally transporting the same from Tuni (Andhra Pradesh) to Mangalore via Bengaluru. The said narcotic substance was recovered from the vehicle of accused No.1 which was driven by accused No.1. Petitioner has committed heinous offence. Contraband seized is of huge commercial quantity and it is punishable with RI upto 20 years. The accused who were supplying the drugs are absconding. The petitioner may involve in similar offence, if he is released on bail. There are prima­facie material available against him.

10. On scrutiny of the rival contentions and the

prosecution papers available on record, the petitioner herein CCH-33 Crl.Misc.No.6772/2021 is traveling in the Asoka Leyland goods transport vehicle along with accused No.1. It is the contention of the petitioner that he is not in possession of contraband. He is in no way connected to the crime. He is not acquainted with one Mustaq and one Imthi who alleged to have placed the order of contraband. There is no role of the petitioner in transporting the said contraband.

11. On careful perusal of the prosecution papers, the

IO., DRI, Bangalore on intercepting the Ashok Leyland vehicle they found 53 packets having contraband substance suspected to be ganja concealed in the drums. On search of the vehicle and on measuring the contraband it was found to be 122.6 Kgs., valued at Rs.30,65,000/­. The petitioner herein is traveling with accused No.1, if the contention of petitioner is accepted what is the necessity for the present petitioner to travel with accused No.1 in a goods lorry. Petitioner herein is not a cleaner or the assistant of accused No.1. what made him to travel in the goods lorry with the accused No.1 has to be explained by the petitioner. Accused No.1 and petitioner were traveling in the lorry carrying huge quantity of contraband. During interception the said narcotic substance was found in the lorry hidden in the drum. The quantum of ganja seized is 122.6 Kgs. of ganja under the seizure panchanama. 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 at Sl.No.134 the narcotic drug – MDMA weighing 10 grams is a commercial quantity. In the present case 122.6 Kgs., of ganja narcotic substance is seized is a commercial quantity.

12. The NDPS Act provides deterrent punishment for

various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. In the recent judgment of Hon'ble Apex court in the case of Union of India through NCB., Lucknow Vs., Nawaz Khan, in Crl. Appeal No.1043/2021 the Hon'ble Apex Court while hearing the appeal arising out of the judgment of Hon'ble High Court of Judicature at Allahabad dated 1.10.2020 wherein the bail plea of the accused came to be allowed. The Hon'ble Apex CCH-33 Crl.Misc.No.6772/2021 Court while setting aside the order of Hon'ble High Court made observation that the Hon'ble High Court has clearly overlooked crucial requirements and glossed over the circumstances which were material to the issue as to whether a case for grant of bail was established. In failing to do so, the order of the High Court becomes unsustainable. Further, the Hon'ble Apex Court has laid guidelines as to the circumstances to be appreciated while considering the bail plea of the petitioner in the said case. The clear enunciation of circumstances made by the Hon'ble Apex Court reads as here under:­ “The following circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of Section 37: (I) The respondent was traveling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-accused; (ii) The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him; (iii) The quantity of contraband found in the vehicle is of a commercial quantity; and (iv) The contraband was concealed in the vehicle in which the respondent was traveling with the co-accused. The Hon'ble Apex Court by appreciating the aforesaid circumstances, has arrived at a conclusion that the Hon'ble High Court of Allahabad in entertaining the bail plea of the accused without observing the circumstances in the said case is held to be unsustainable. Herein in the case on hand, the petitioner herein is traveling with accused No.1 in the goods lorry found to be carrying contraband substance weighing 122.6 Kgs., of ganja valued at Rs.30,65,000/- which is the commercial quantity. There is no occasion for the present petitioner to travel in a goods lorry when other passenger vehicles and govt., passenger vehicles are available. The plea of the petitioner that he is not aware of transport of contraband could not be entertained. The accused No.1 along with the petitioner who were moving in the transport vehicle were found to be in possession of 122.6 Kgs., of ganja.

13. The Hon'ble Apex Court in the case of State of

MP Vs., Kajad reported in 2001(7)SCC 673 while considering an appeal against an order of the High Court CCH-33 Crl.Misc.No.6772/2021 allowing the second bail petition of the respondent who was petitioner under the NDPS Act has held that : "5. ………….. Negation of bail is the rule and its grant an exception under sub­clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub­section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.” In the dictum of Babua Vs., state of Orissa reported in 2001(2)SCC 566 the Hon'ble Apex Court has held that:­ "3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1) (b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the petitioner is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the petitioner would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view." As per the enunciation of law in the afore said dictums' it is clear that no person shall be granted bail unless the two conditions are satisfied, i.e., the satisfaction of the court that there are reasonable grounds for believing that the petitioner is not guilty and that he is not likely to commit any offence while on bail. In this case, in all 122.6 Kgs. of MDMA seized from all the accused persons. At this stage, there is primafacie material available against the petitioner in regard to the possession of narcotic drug. The learned counsel for petitioner has failed to place any material before this court that he was not in possession of NDPS article at the time of their apprehension and search. The Hon’ble High Court has rejected the bail plea of petitioner in Crl.Ptn No. 8123/21 vide order dated 19.01.2022. This court also rejected the bail plea of petitioner in Crl.Misc No.7387/22 in order dated 23.09.2021. Learned counsel for petitioner CCH-33 Crl.Misc.No.6772/2021 contended that accused No.2 has been granted bail by the Hon'ble High Court, hence, on the ground of parity the petitioner may be enlarged on bail. He has referred to the order of Hon'ble High Court reported in 2000 11 (3) Crimes 627 Sayed Rafeeq and others Vs., State in the said case the Hon'ble High Court has granted bail to the accused holding that where co­accused facing charge in similar facts and circumstances were granted bail. The accused deserve bail on principle of parity. I have gone through the judgment of Hon'ble High Court. With due respect it may not be made applicable to the present facts as in the present case petitioner is prosecuted for transporting commercial quantity of ganja. He is the main person who is transporting ganja. He was caught red handed by the complainant IO. The total quantum of ganja involved is 122.6 Kgs. At this stage, the petitioner herein has failed to made out additional grounds to entertain his bail plea In the result, I proceed to hold that the petitioner herein has not made out any grounds to entertain his plea for bail. Accordingly, I answer point No.1 in the negative.

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 rejected. [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 July 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*