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 23rd DAY OF AUGUST 2022
Crl.Misc.No.7750/2022
Petitioner :
(accused No.8)
Khalandar S S @ Tamsy, S/o.Soofi S
K, No.51/159, 30 years,
Shanivarasanthe, somawarpet Tq.,
Kodagu district, Karnataka 571235.
(By Sri BJ ., Adv.)
V/S.

Respondent :
State by NCB., Bangalore
(By Spl. Public Prosecutor)
ORDER
The present petition U/Sec.438 of Cr.P.C., is filed by the
petitioner to enlarge him on bail in the event of his arrest in
NCB..No,48/1/19/2021 of BZU., registered for the offences
2
punishable U/Sec. 8(c), 20(b)(ii)C, 23, 25, 27, 27A, 28, 29 of
N.D.P.S. Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is 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. The respondent IO said to have issued summons to
the petitioner, but that has not been received by the present
petitioner. The name of petitioner has been falsely implanted
in the case.

The petitioner is staying at Kodagu.

If he is
arrested he is going to loose the job. He has no knowledge of
the drugs seized in the case.
family.

He hails from a respectable
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
CCH­33
Crl.Misc.No.7750/2022
3. The prosecution while opposing the bail petition
contended that in the present case the quantum of ganja
seized is 136.8 Kgs., from the conscious possession of accused
Nos.1 and 2 which was concealed in 8 parcel boxes wrapped
with white colour gunny bag. House search of accused Nos.1
and 2 was conducted, during house search Rs.4,81,000/­ cash
was seized.

1.015 Kgs., of ganja seized from the house of
accused No.2 on 30.9.2021. Again when the house search of
accused No.2 was conducted on 1.10.2021 1.920 Kgs., of
ganja and cash of Rs.29,475/­ was seized. The total quantum
of ganja seized is 139.735 Kgs., and cash if Rs.5,10,475/­.
Basing on the voluntary statement of accused Nos.1 to 3,
material objects seized. During interrogation of accused Nos.1
to 3 information about accused No.4 to 7 received, summons
served upon them. Their statements were recorded. Basing on
their statements they were arrested. Accused Nos.1 to 7 have
stated that they are involved in drug trafficking.

They have
revealed about drug dealing associates and active role in their
drug trafficking business and one Kalandar @ Thamsi i.e., the
4
present petitioner and Rameez are the main handlers.
Accused No.1 was co­ordinating in drug supply delivery and
financial activities. Aakash and Kamalesh accused Nos.2 and 3
were the delivery boys. Rasheed and Ramlal Sharif, Aslam and
Abdul Razak are the drug gang members.

IO., NCB issued
notice to the present petitioner on 3.3.2022, 11.3.2022,
18.3.2022 through speed post to appear before NCB, BZU., on
10.3.2022, 17.3.2022, 24.3.2022 to join the investigation. The
summons was issued through Indian Postal track consignment
EK 767556117IN dated 4.3.2022 was confirmed delivery and
other summons were returned back as he has denied to
receive. The petitioner instead of joining the investigation has
approached this court seeking anticipatory bail. On looking to
the material available on record the petitioner is the main
handler of customers who get orders and he used to inform to
accused No.3 to deliver the ganja by concealing in Swiggi
delivery bags.

Accused Nos.1 to 7 are the drug traffickers
associated with each other including the present petitioner.
The petitioner is not the permanent resident of Bengaluru he is
5
CCH­33
Crl.Misc.No.7750/2022
not entitled for extra ordinary relief of anticipatory bail as the
allegation against the present petitioner is serious in nature.
Further in the bank statement of present petitioner there are
several transactions in the bank account of petitioner and
payments from his account to the other accused which
indicate his involvement in the crime and his active role in the
crime. With these specific pleas sought to reject the bail plea
of the 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 him on
anticipatory bail?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the Negative
6
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:­ 7. POINT NO.1:­ The IO of NCB
Bangalore., has put the criminal law into motion. The gist of
the allegation reads as here under:­
On
30.9.2021
the
complainant
received
credible
information that two persons are transporting ganja in a
Maruthi Swift car. After receiving the information he has
informed to his superior officer obtained permission and he
along with panchas and staff went near the shop by name
Lucy International at Kundalahalli and intercepted the white
colour Maruthi Swift car bearing No.KA 12 MA 6697 wherein
two persons were sitting inside the car. He has enquired the
said persons who have revealed their names and address. On
search of the vehicle he has found 136.8 Kgs., of ganja from
the said car. Incriminating substance was seized under detail
mahazar.

The accused Nos.1 and 2 were found to be in
conscious possession of ganja. The accused Nos.1 and 2 were
arrested and a detail report
is submitted. Basing on the
7
CCH­33
Crl.Misc.No.7750/2022
report, a case in NCB.Cr.No,48/1/19//2021 of
BZU.,
registered for the offences punishable U/Sec. 8(c), 20(b)
(ii)C,23,25,27,27A,28,29 of N.D.P.S. Act.
During interrogation of accused Nos.1 and 2 they have
revealed about the involvement of accused Nos.3 to 8 in the
case.

When the house search of accused Nos.1 and 2 was
conducted, in the house of accused No.1 Rs.4,81,000/­ cash,
and in the house of accused No.2 1.015 Kgs., of ganja was
seized on 30.9.2021.
enquired.

accused No.3 was also summons and
On 1.10.2021 when the house search of accused
No.2 is conducted 1.920 Kgs., of ganja and 29,475/­ thus, in
all 139.735 Kgs., of ganja and Rs.5,10,475/­ cash was seized.
Accused Nos.4 to 7 were served with summons. They were
examined.

They have revealed their active role in drug
trafficking. Accused Nos.1 to 3, 5 to 7 have revealed the name
of present petitioner and one Rameez as the main handlers of
drugs. Accused No,.1 was co­ordinating all the drug supply,
delivery and financial activities. On Aakash and Kamlesh were
8
drug delivery boys, accused No.2, 5 6 and 7 are the drug gang
members.

8.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 139.735 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.55 the narcotic drug
– Ganja weighing 20 Kgs., is commercial quantity. In the
present case 139.735 Kgs., of ganja narcotic substance is
seized which is a commercial quantity.

9.

Here in this case the petitioner is seeking extra
ordinary relief of anticipatory bail.

As per the investigation
papers, IO., NCB., has issued summons to the accused on
3.3.2022,
11.3.2022,
18.3.2022,
10.3.2022,
17.3.2022,
24.3.2022 to appear before him for the purpose of enquiry.
The summons issued to the accused through speed post was
CCH­33
Crl.Misc.No.7750/2022
9
sent through postal track consignment No.EK 767556117IN
dated
4.3.2022
was
confirmed
delivery
and
other
two
summons were returned back as he has denied to receive. The
said report of IO., NCB clearly establishes that the petitioner is
avoiding to appear the IO., for the purpose of investigation.
That apart the materials collected by the investigating agency
after examining accused Nos.1 to 7 indicates the involvement
of present petitioner in the crime.

The bank statement of
petitioner collected by the investigating agency revealed
monitory transaction between the petitioner and other accused
as there are payments made from his bank account to the
account of other accused.

In the instant case quantum of
ganja seized is to the tune of 139.735 which is a commercial
quantity of ganja.

The accused Nos.1 to 7 were arrested on
collecting incriminatory material the final report is submitted
before this court.

This petitioner is avoiding the process of
law. He has contended that he is from Kodagu if he is arrested
he is going to loose the job and he is also suffering from
illness. The said contention raised by the petitioner could not
10
be entertained as the medical report does not depict any
serious illness.

Further his contention that he is from a
different district also could not sustain. when he has served
with summons it is his duty to appear before the IO., for the
purpose of investigation. The offences involved in the case is
heinous in nature. Incriminatory material is already collected.
The contention raised by the petitioner in support of his bail
plea would not be entertained. Learned counsel for petitioner
has referred to the order of Hon’ble High Court in Crl.Petition
4578/2022 dated 13.7.2022 and Crl.petition 3278/2022 dated
22.4.2022. The Hon’ble High Court has granted bail to accused
No.6 and 7. The said bail petition is filed U/s.439 of Cr.P.C.
The Hon’ble High Court on considering the material placed on
record in the said bail petition has entertained the bail plea of
accused.

Further, accused No.7 has submitted medical
reports in support of his ailment. On considering the serious
ailment he has been granted bail.

Accused No.6 has been
initially refused bail but in Crl.Petition 4578/2022 he has been
granted bail. The present petitioner has not appeared before
CCH­33
Crl.Misc.No.7750/2022
11
the investigating agency he has refused the summons issued
by the IO. He is seeking anticipatory bail whereas the Hon’ble
High Court has considered the regular bail plea of the accused
who are in judicial custody.

Thus, the claim of the present
petitioner that he has to be enlarged on bail on the ground of
parity could not be entertained.
10.

Further, it is necessary for me to refer to the
judgment of the Hon’ble Apex Court in the case of Satpal
Singh Vs., State of Punjab in 2018 SAR (Criminal) 623 was
pleased to hold that when a person is found to be in illegal
possession of contraband of commercial quantity, the Court
would not have granted anticipatory bail to the accused.
Further the Hon’ble High Court could not have passed order
U/s.438 or 439 of Cr.P.C., without reference to Sec.37 of NDPS
Act and without entering a finding on the required level of
satisfaction in case the court was otherwise inclined to grant
the bail.

12
11. In the recent judgment of Hon’ble Apex Court reported in
Nathu Singh and Ompal Singh vs., state of UP and others in
Crl.Appeal No.522/2021 (SLP.Crimes Crl.2096/2021) dated
28.5.2021 the Hon’ble Apex Court while dismissing an
anticipatory bail plea held that courts have been enshrined
with discretionary powers for deciding anticipatory bail pleas.
However, such discretionary power cannot be exercised in an
untrammeled manner. The court must take into account the
statutory scheme U/s.438 of Cr.P.C., particularly, the proviso
to sec.438(1) Cr.P.C., and balance the concerns of the
investigating agency, complainant and the society at large with
the concerns/interest of the applicant.

Therefore, such an
order must necessarily be narrowly tailored to protect the
interest of applicant while taking into consideration the
concerns of the investigating authority. Such an order must
be a reasoned one.
In the case of MP and another vs., Ramkishan Bolithya
and another reported in 1995 SCC 3 221 the Hon’ble Apex
Court held that getting anticipatory bail cannot be considered
13
CCH­33
Crl.Misc.No.7750/2022
as a fundamental right mentioned under article 21 of the
Indian constitution.
Further in the case of Susheel Agrawal and others Vs.,
State ny NCT of Delhi and another Spl.L.P(Crl Nos.7281­
7282/2017 dated 29.1.2020. The Hon’ble Apex Court while
answering the reference was pleased to laid down several
guidelines to be kept in the mind of courts which dealing with
438 Cr.P.C., applications. One of the guideline is court ought
to be generally guided by considerations such as the nature
and gravity of the offences, the role attributed to the applicant
and the facts of the case, while considering whether to grant
anticipatory bail or refuse it.

Whether to grant or not is a
matter of discretion; equally whether and if so, what kind of
special conditions are to be imposed (or not imposed) are
dependent on facts of the case, and subject to the discretion of
the court.

12.

The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. At this stage, it is necessary for
14
me to refer to the judgment of Hon’ble Apex Court in Crl.
Appeal No.1043/2021 dated 22.9.2021 in the case Union
of India through NCB., Lucknow Vs., Mohammed Nawaz
Khan wherein the NCB., Lucknow has challenged the order of
grant of bail to the accused by the Hon’ble High Court of
Allahabad, Lucknow Bench. In the said case the Hon’ble Apex
Court pleased to make a detail discussion on the criteria to be
considered for grant of bail when the accused is prosecuted
under the provisions of NDPS Act. At para­20 of the judgment
the Hon’ble Apex Court pleased to note that:­
“the High Court and this court are required to apply while
granting bail is whether there are reasonable grounds to
believe that the accused has not committed an offence and
whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the
NDPS Act and in order to curb the menace of drug­trafficking
in the country, stringent parameters for the grant of bail
under the NDPS Act have been prescribed. In the present
case, the High Court while granting bail to the respondent
adverted to two circumstances, namely (i) absence of
recovery of the contraband from the possession of the
respondent and (ii) the wrong name in the endorsement of
CCH­33
Crl.Misc.No.7750/2022
15
translation of the statement under Section 67 of the NDPS
Act.

As regards to the finding of Hon’ble High Court
regarding absence of recovery of the contraband from the
possession of the respondent, we note that in Union of India
v. Rattan Mallik, a two­judge Bench of this Court cancelled
the bail of an accused and reversed the finding of the High
Court, which had held that as the contraband (heroin) was
recovered from a specially made cavity above the cabin of a
truck, no contraband was found in the ‘possession’ of the
accused. The Court observed that merely making a finding
on the possession of the contraband did not fulfill the
parameters
of
Section
37(1)(b)
and
there
was
non­
application of mind by the High Court. In line with the
decision of this Court in Rattan Mallik (supra), we are of the
view that a finding of the absence of possession of the
contraband on the person of the respondent by the High
Court in the impugned order does not absolve it of the level
of scrutiny required under Section 37(1)(b)(ii) of the NDPS
Act.”
13. Further in regard to non compliance of the procedure
laid U/s.42 of NDPS Act, it is held by the Hon’ble Apex Court
that it is a question of fact. Further, at Para­30 the Hon’ble
Apex Court pleased to make the following essential elements
16
ought to have been considered by the Hon’ble High Court of
Lucknow.
(i) The respondent was traveling in the vehicle all the
way from Dimapur in Nagaland to Rampur in Uttar
Pradesh with the co­accused;
(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.

By making a detail observation in granting the bail to the
accused is incorrect and has set aside the impugned order.
The aforesaid recent judgment of Hon’ble Apex Court clearly
highlights on the aspect that what are all the circumstances to
be considered and has to be evaluated by the court to consider
the bail plea of the accused.

17
CCH­33
Crl.Misc.No.7750/2022
14. On going through the material placed on record by
the investigating agency, at this stage, there are serious
allegations against the present petitioner that he is involved in
drug trafficking and he is financing the drug business since
several years.

Further, contraband seized in this case is
commercial quantity of ganja. In the judgment of Hon’ble Apex
Court in the case of UOI vs., Rathan Mallik reported in 2009
(2) SCC 624 the Hon’ble Apex Court cancelled the bail of
accused and reversed the finding of Hon’ble High Court which
was held as the contraband was recovered from a specially
made cavity above the cabin of a truck. No contraband was
found in the possession of the accused.

The Hon’ble Apex
Court observed that merely making a finding on the possession
of contraband did not fulfill the parameters of Sec.37 of NDPS
Act
and there was non application of mind by the Hon’ble
High Court.

The finding of absence of possession of
contraband on the person does not absolve it of the level of the
scrutiny required U/s.37(1)(b)(ii) of NDPS Act. Herein in his
case, the petitioner is claiming the extra ordinary relief of
18
anticipatory bail.

At this stage, the investigation papers
available on record indicate that there are prima facie
reasonable grounds to believe that the accused has involved in
drug trafficking along with accused Nos.1 to 7. therefore, I am
of the opinion that the petitioner herein is not entitled for bail.
Accordingly, points for consideration are answered in the
negative.

15. Point No.2:­ In the result, I proceed to pass following:
ORDER
The Petition filed by the petitioner U/Sec.438
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 23rd day of August 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*