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 23 rd DAY OF SEPTEMBER 2022 Crl. Misc.No.8750/2022 Petitioner : Kola Appala Shivaprakash, s/o (accused No.1) Tatarav Kola, aged about 43 years, R/at No.1-95, Old Krishnadevi Peta, Krishnadevi Peta Post, Golaginda Mandalam, Vishakapattanam District, Andhra Pradesh. (By Sri RRK., Adv.) V/S. Respondent : State of Karnataka by Sanjaynagar Police (By Public Prosecutor) O R D E R This is the second bail petition filed U/Sec.439 of Cr.P.C., by the petitioner to enlarge him on bail, in Cr.No.21/2022 for the offence punishable U/Sec.20(B) 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. 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. The quantity seized from the possession of the petitioner is less than commercial quantity. The investigation in the case is completed and charge sheet is filed. Further detention of the petitioner is not warranted. 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 103 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 CCH-33 3 Crl.Misc.8750/2022 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. 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:

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

REASONS

7. POINT NO.1:- The PSI of Sanjay nagar PS., has put

the criminal law into motion. The gist of the allegation reads as here under:- On 10.02.2022 at about 11:30 am., when the complainant was in the station he has received credible information that, three persons were selling ganja in their Bolero Jeep bearing Andhra Pradesh registration no. He has informed his higher officer seeking permission to conduct the raid. After obtaining permission he has been to the spot along with staff. He has send a decoy to the said suspected persons. On confirming about the sale of contraband from the said suspected persons, he along with his team surrounded and apprehended them. On enquiry they have revealed their names and addresses. During body search of accused and vehicle search of the accused the total quantum of ganja seized is 103 Kgs. A detail mahazar is drawn, the accused No.1 and 2 were arrested. A detail report is prepared submitted before SHO. The said report is the basis to the register case is against accused persons in crime No.21/2022 for the offence CCH-33 5 Crl.Misc.8750/2022 punishable under Sec.20(B) of NDPS Act. The present petitioner is accused No.1 in the case.

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 investigation in the case is concluded and charge sheet is filed. Further detention is not warranted.

9. Further, It is argued by the counsel for the petitioner

that he is placing the CCTV photograph of the vehicle bearing No.AP 16 FF 1033. in the bail petition there is no specification about the vehicle and the CCTV footage. The copy of the photo produced does not indicate the details of the place and the date. Therefore, the said incomplete document produced by the petitioner may not be looked into.

10. It is vehemently argued further that the investigating

agency has not followed the procedures contemplated U/s.42 and 50 of NDPS Act prior to the seizure. He has referred to the order of Hon'ble High Court in Crl.Petition 8110/2018, dated 25.2.2019 Chukwunanso Ajmamekwe Vs., State and in Crl.Petition 8644/2017 dated 18.1.2018 Ben Okoro Vs., State. In the said cases, discussion is made about the compliance of mandatory provisions. On going through the facts, the facts ion the said case differs from the present facts, hence, with due respect the said orders referred to by the learned counsel for the petitioner may not be made applicable. It is necessary for me to note that at the stage of considering the bail plea of the accused this court has to look into the primafacie material placed on record by the rival parties to the case in depth enquiry into the evidence is not called for. Therefore, the contention of learned counsel for petitioner that there is no compliance of statutory provisions by the IO., and hence, the petitioners are entitled for bail would not be entertained at this stage.

11. The prosecution opposed the bail plea on the ground

that the offence alleged against the petitioner is punishable upto 10 years. In the event of grant of bail he is going to abscond and may hamper investigation. CCH-33 7 Crl.Misc.8750/2022

12. On careful analysis of rival contentions and the

prosecution papers available on record, the investigating agency seized 103 Kgs., of ganja under the seizure panchanama from the present petitioner and other accused. 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.55 the narcotic drug­ganja 1000 grams is small quantity and 20 Kgs., is commercial quantity. In this case the quantum of ganja seized is 103 Kgs., which is a commercial quantity.

13. 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 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 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 non­application 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. CCH-33 9 Crl.Misc.8750/2022

14. 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 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 co­accused. By making a detail observation in granting the bail to the accused held to be is incorrect 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. In the recent judgment of Hon'ble Apex Court in the case of State of Kerala Vs., Rajesh in (2020) 12 SCC 122 it is observed that “reasonable grounds” means something more than primafacie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. Further in the judgment of Hon'ble Apex Court in the case of State of MP Vs., Kajad reported in 2001 (7) SCC 673 has held that : CCH-33 11 Crl.Misc.8750/2022 "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 are not guilty of the offences with which they are charged and further that they are 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 are not guilty of such offence and that they are not likely to commit any offence while on bail alone will entitle them 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 are 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 they are 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 are not guilty and that he is not likely to commit any offence while on bail. Here in the present case the petitioner was apprehended and 103 Kgs., of ganja was seized from the vehicle of petitioner and other accused. The quantity of the contraband is commercial quantity. At this stage, there are primafacie materials available against the petitioner in regard to the possession of narcotic drug. 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. CCH-33 13 Crl.Misc.8750/2022

15. 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 23rd day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.