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 28 th DAY OF SEPTEMBER 2022 Crl. Misc.No.8895/2022 petitioner : Laingihual, W/o.Lalremruvata, (accused No.4) a/a 36 years, R/at 3rd Floor, Dr.B.Thangdailova Building, Khatla, Aizwal, Mizoam-796001. (By Sri.SN., Adv.) V/S. Respondent : Union of India, NCB., Bengaluru. (By Spl. Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioner/accused No.4 to enlarge her on bail, in NCB.Cr.No.48/1/13/2022/BZU for the offence punishable U/Sec.8(c), 23C, 27A, 28 and 29 of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:-

That the petitioner is innocent and law abiding citizen. She has not committed any offence much less the offence as alleged. She has been falsely implicated by the respondent in this case basing on the voluntary statement of accused Nos.1 and 2. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. She hails from a respectable family. 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 I.O has seized 13.85 Kgs., of heroin from the conscious possession of accused No.1 and present petitioner as it was found in their baggages. During preliminary enquiry of accused No.1, it is revealed that she came to KIA on 24.5.2022 to collect her luggage baggage having tag No.KQ495221 along with her friend present petitioner who also carried one luggage baggage containing drugs and reached Bangalore on 23.5.2022. The complainant NCB issued notice 3 CCH-33 Crl.Misc.8895/2022 to her on 24.5.2022 who was also present at KIA airport, Bangalore, she in her voluntary statement has stated that she has carried luggage baggage containing drugs from Zimbabwe to Bangalore and reached Bangalore on 23.5.2022 and on the date of apprehension she was staying in room No.001, OYO 11419 Surya Residency, New Airport Road, Bangalore and her luggage baggage was kept in the said room. When the complainant NCB along with accused Nos.1 and 2 reached to the said address and on checking the room they recovered 6.890 Kgs., of heroin from the luggage baggage of accused No.2 kept in the said room. Basing on the statement of accused No.1 notice was issued to accused Nos.3 and present petitioner. Basing on the voluntary statement of present petitioner, NCB team along with present petitioner went to Delhi for follow up action. The present petitioner has identified the main culprit of drug trafficking accused No.5 to whom the said drug luggage baggages are to be delivered at Delhi. The house search of accused No.5 was conducted after issuing notice to him. During house search Rs.5,80,000/- cash was recovered. The notice was issued to Nwafor John Onyechowa @ Mik John U/s.67 of NDPS Act. His statement came to be recorded. Thereafter, notices were issued to accused Nos.6 to 8 and their statements were recorded. They have stated their involvement in importing, transporting and taking delivery of seized 13.850 Kgs., of Heroin. It is further contended that 13.850 Kgs., of Heroin is seized from the conscious possession of present petitioner and accused No.1. On 28.5.2022 accused No.6 to 8 were arrested. Further, another Mizoram lady by name Zamveli was arrested and arrayed as accused No.9. The petitioner is making quick money by illegal drug deals. In the voluntary statement she has stated that she had the knowledge of the heroin which was concealed in the sealed baggage of accused Nos.1 and 2 and the same had to be received by the present petitioner for further delivering it to their Nigerian boss/accused No.5 at New Delhi and who was into drug trafficking for making quick money. All the accused have identified each other and they are the members of international drug trafficking network. In the event of grant of bail she may abscond and may hamper the investigation. Further, there are prima-facie materials available against the 5 CCH-33 Crl.Misc.8895/2022 petitioner attracting the offences alleged in the prosecution papers. Hence, sought to reject the the petition.

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 IO., NCB has put the criminal law

into motion. The gist of the allegation reads as here under:- On 23.05.2022 at about 17.05 hours the complainant has received credible information that one luggage baggage having tag No.KQ495221 contain narcotic drugs is carried from a lady passenger from Dubai Airport who is traveling from Nairobi to Bangalore via Dubai. The said flight will reach Bangalore at around 3.00 hours on 24.5.2022. On receipt of the information he has informed to his higher officer and obtained permission to conduct raid. The NCB team mounted surveillance at KIA airport, Bangalore on 24.5.2022. At about 4.00 hours the customer service supervisor, Air India Sats KIA Airport informed that the luggage bearing tag No.KQ 495221 has been arrived and the lady passenger would collect the same at 5.15 hours. When the lady passenger came to the baggage arrival area the staff handed over the said luggage baggage to the lady passenger and after identified and confirmed by her that the said luggage belongs to her the NCB team approached the said lady enquired her, she replied that she has received the said luggage from an African lady at Zimbabwe on 14.5.2022 which contain narcotic drug. On search of the said luggage baggage IO has found 7 Kgs., of heroin. She seized the same. A detail mahazar is drawn. Sec.67 notices were issued to accused Nos.1 and 2. Their statements came to be recorded. On the reasonable belief of they transporting commercial quantity of contraband they were 7 CCH-33 Crl.Misc.8895/2022 arrested and a case in NCB.F No.48/1/13/2022/BZU for the offences punishable under Sec.8(c), 23C, 27A, 28 and 29 of NDPS Act. In continuation of seizure of 7 Kgs., of Heroin on 24.5.2022 on the voluntary statement of accused No.1 she raided the room No.001, Oyo 11419, Surya Residency, New Airport Road, Bangalore and the accused showed the luggage baggage. On searching the same she found 6.850 Kgs., of heroin. she seized the same under mahazar.

8. The learned counsel for petitioner herein is falsely

implanted in the case. She is in no way connected to the seized contraband.

9. On looking to the prosecution papers the quantum of

narcotic substance seized 13.850 Kgs., of Heroin. 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.56 the narcotic drug – Heroin weighing 05 grams is small quantity and 250 grams is a commercial quantity. In the present case heroin seized is weighing 13.850 Kgs., is commercial quantity. The allegation against the present petitioner is she has identified accused No.5 who is the main accused in the case. At the instance of accused No.5 Rs.5,80,000/­ cash is seized from his house. His statement came to be recorded. She has active role in the commission of offence. All the accused have identified each other.

10. 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 9 CCH-33 Crl.Misc.8895/2022 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. 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 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. 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 11 CCH-33 Crl.Misc.8895/2022 “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 : "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 she are charged and further that she 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 she are not likely to commit any offence while on bail alone will entitle her 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 she 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 13 CCH-33 Crl.Misc.8895/2022 conditions are satisfied, i.e., the satisfaction of the court that there are reasonable grounds for believing that the accused are not guilty and that they are not likely to commit any offence while on bail. Huge quantum of contraband seized from the conscious possession of accused No.1 and 2. The present petitioner has identified accused No.5 who is the main accused in the case and he is involved in international drug trafficking. At this stage, there are prima­facie materials available against the petitioner in regard to the drug trafficking business along with other accused. At this stage, no material placed on record by the defense to show that the petitioner is no way connected with the alleged crime. In the result, I proceed to hold that the petitioner herein has not made out any grounds to entertain her plea for bail. Accordingly, I answer point No.1 in the negative.

11. 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 28th day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.