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 29 th DAY OF NOVEMBER 2022
Crl.Misc.No.11356/2022
Petitioner :
(accused No.2)
Mahesh @ Mahesh Kumar Yadav,
S/o.Ram Narayan Yadav,
a/a 27 years, R/at No.Munekolal,
Marathahalli, Bengaluru
Native of
Howri Ward No.01, Bhachoora,
Madhubani, Bihar.
(A2. is in JC)
(By Sri.Srinivasa.C. Adv.)
V/S.
Respondent :
State by Vivekanagar PS
(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.172/2022 of
Vivekanagar PS., registered for the offence punishable U/Sec.
20(b), 25 of NDPS Act.
2
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 no knowledge of alleged crime and
falsely implanted at the instance of extraneous elements. The
complainant
has
not
seized
any
contraband
from
the
possession of the petitioner. He is the only earning member of
his family. The mandatory provisions U/s.50 of NDPS Act has
not been complied.
There are no eye witnesses who speak
about the sale of alleged contraband. 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. He has no bad antecedents.
He is the sole bread earner of his family.
grant bail.
Hence, sought to
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Crl.Misc.No.11356/2022
3. The objection raised by the prosecution is that the
investigating agency has in all seized 5 Kgs., 520 grams of
ganja from the possession of the accused.
The accused is
found to be in possession of narcotic substance.
A detailed
mahazar is drawn in the spot. Personal search is conducted.
The offence alleged against the petitioner is punishable with
rigorous imprisonment for a term which shall extend upto 10
years. There is a primafacie case available against the
petitioner.
He is an habitual drug dealer.
In the event of
grant of bail, he would abscond and may hamper the
investigation. 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 him on
bail?
2. What order?
6. My findings on the above points are as under:
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Point No.1: In the Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- The PI of Viveknagar PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:On 23.10.2022, at 7.30 pm., when the complainant was
discharging duties in the station, he has received a credible
information that in a vacant space located beside Zeecarf
Apartment, ST Bed layout, Koramangala Bangalore a person is
selling contraband to the public. On receipt of the information
he has informed the same to his higher officer and obtained
permission to conduct raid. He along with panchas had been
to the spot and mounted surveillance. He has found a person
with two wheeler and a trolley bag moving suspiciously. He
was apprehended and questioned about the contents of the
bag. He was also enquired about his identity. He has disclosed
that he is on Rakesh Kumar Singh, s/o.Ramabahaddur Singh,.
On enquiry he has revealed that he was possessing ganja. The
bag was opened the contents were taken out, it was found to
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Crl.Misc.No.11356/2022
be 5 Kgs., 520 grams of ganja on weighing the same. The said
ganja was seized under the mahazar. A report is prepared and
submitted before the SHO., which is the basis to register the
case against the accused in Cr.No.172/2022 for the offences
punishable U/s.20(B) and 25 of NDPS Act.
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. The mandatory provisions of Sec.41, 42, 50, 52 and
47 of the Act are not complied. He is permanent residents of
the address given in the cause title. In the event of grant of
bail he is ready to abide by the conditions which are being
imposed by this court.
9. It is argued by the prosecution that the petitioner has
committed heinous offence 5 Kgs., 520 grams of
seized from the petitioner and other accused.
ganja
is
The offence
punishable with imprisonment upto 10 years and with fine.
There are primafacie material available against them.
6
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
23.10.2022 complainant has conducted raid and apprehended
accused.
On looking to the seizure panchanama the drugs
seized from accused is weighing 5 Kgs., 520 grams of ganja. 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 5 Kg 520 grams of ganja
is an intermediate 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.
CCH-33
Crl.Misc.No.11356/2022
7
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 to the tune of 5 Kgs., 520 grams of ganja which is an
intermediate
quantity.
When
the
quantity
is
less
than
commercial quantity, rigors of Sec.37 of the NDPS Act will not
attract, and factors become similar to bail petitions under
regular statues normal, unless the prosecution points towards
exceptional circumstances.
12.
The major portion of investigation in the case is
concluded as the incriminatory article is already seized from
accused.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.
His
Further
Voluntary
statement is already recorded. As per the information provided
8
by the petitioner he 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.
3.
He shall not tamper the witness or abscond.
4.
He
shall
co-operate
investigation.
5.
He shall not commit similar offence or
any offence while on bail.
6.
He shall furnish his photo ID proof and
with
I.O
for
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Crl.Misc.No.11356/2022
local address proof document before the
court and photo ID proof of his sureties.
7.
He shall appear before the court on all
hearing dates.
8.
Breach of any of the conditions by the
petitioner would entail cancellation of bail.
[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 29th day of November 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*