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 JULY 2022
Crl. Misc.No.6736/2022 Petitioners : 1.Mohammad Harshalam Baig, s/o (accused No.1 to 3) Naseer Baig, aged about 20 years, R/at 17th cross, Abdul Kalam Street, Near Dominic college, Rashad Nagar, Bengaluru
2. Mohammad Nadeem, S/o Allabakash, aged about 19 years, R/at 2nd cross, Arabic college, Ibrahim Saheb Street, Near Amam Beaf Stall, Nagawara Main road, Bengaluru.
3. Sacheendran, S/o Rajendran, aged about 19 years, R/at No.1, B Cross, North street, Vivek Nagar Post, Neelasandra, Bengaluru
(By Sri. A.T.P, Adv.)
V/S.
Respondent : State by Avalahalli PS. (By Public Prosecutor)
O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioners to enlarge them on bail, in Cr.No.249/2022 of Avalahalli PS., registered for the offence punishable U/Sec.8(c), 22(c) of NDPS Act.
2. The grounds urged by the petitioners for grant of bail are as under: That the petitioners are innocent and law abiding citizens. They have not committed any offence much less the offence as alleged. They have been falsely implicated by the respondent in this case. Though the alleged offences are 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 petitioners are permanent residents of the address shown in the cause title. The petitioners are ready and willing to abide by any conditions imposed by this court in the event of grant of bail. They are ready to offer surety for his due appearance before this court. Hence, sought to grant bail. CCH-33 Crl.Misc.No.6736/2022
3. The prosecution while opposing the bail petition contended that the I.O has seized 7.9 grams of MDMA from the accused Nos.1 to 3 and 6.8 grams from accused No.4. The offences alleged against the petitioners are punishable with rigorous imprisonment for a term upto 20 years and shall also be liable to fine. There is a primafacie case available against the petitioners. They are habitual drug dealers. There is primafacie case made out against petitioners. If petitioners are released on bail, they will continue the profession of narcotic drug selling, and they may abscond and tamper evidence of the prosecution. Hence, sought to reject the bail plea of petitioners.
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 petitioners have made out sufficient grounds to enlarge them on bail?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- A report submitted by PSI, Avalahalli., who is the complainant in this case before the K.R Puram PS. The contents of the report is here under:- On 29.06.2022 at about 7.00 am., when the complainant was on patrolling duty he has received credible information that the above petitioners were selling prohibited psycho traffic MDMA crystal and Unlawfully making money in the premises of DRDO compound, near Jyothipura gate, Devanahalli road, Bydarahalli Hobli, Bengaluru East Taluk. He has informed the matter to the Higher Officer and obtained permission to conduct raid. He went to the spot and apprehended accused Nos.1 to 3. On enquiry they revealed their names and addresses. On personal search of the accused persons the IO., has seized 6.8 grams of MDMA. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared & submitted before SHO which is the basis to register the case CCH-33 Crl.Misc.No.6736/2022 against the accused in Cr.No.249/2022 of Avalahalli PS registered for the offence punishable U/Sec. 8(c), 22(c) of NDPS Act. Thereafter the accused were arrested and produced before jurisdictional Magistrate and were remanded to JC. During further investigation of the case accused No.4 was apprehended and they have seized 2.4 grams of MDMA. He was arrested and produced before the court and remanded to judicial custody.
8. It is argued by the learned counsel for petitioners that they are planted in the case by the complainant police they are 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. They are permanent residents of the address given in the cause title. In the event of grant of bail they are ready to abide by the conditions which are being imposed by this court.
9. It is argued by the prosecution that the petitioners has committed heinous offence 6.8 grams MDMA is seized from the petitioners herein. The offence punishable with imprisonment upto 10 years and with fine. There are prima facie material available against them.
10. On careful analysis of rival contentions and the prosecution papers available on record, it is evident that PSI, Avalahalli police station has conducted raid and apprehended the petitioners. On looking to the seizure panchanama the drugs seized is weighing 6.8 grams of MDMA. 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.134 the narcotic drugMDMA 0.5 grams is small quantity and 10 grams., is commercial quantity. In this case the quantum of MDMA seized is 6.8 grams MDMA 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 MDMA, which is a non commercial quantity appellant accused not involved in any other case – in above circumstances, held, appellant CCH-33 Crl.Misc.No.6736/2022 should be released on bail, pending trial – hence, directions issued to release appellant on bail, on certain conditions. 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 6.8 grams of MDMA 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. The offence alleged against the petitioners are not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. As per the information provided by the petitioners they are permanently residing in the address shown in the cause title. The apprehension of the prosecution that they 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 petitioners U/Sec.439 of Cr.P.C is hereby allowed. The petitioners are enlarged on bail on executing personal bond for a sum of Rs.1,00,000/- each with Two sureties for the like sum with following conditions.
1. The petitioners 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. They shall not leave the jurisdiction of this court without prior permission.
3. They shall not tamper the witness or abscond.
4. They shall co-operate with I.O for investigation.
5. They shall not commit similar offence or any offence while on bail.
CCH-33 Crl.Misc.No.6736/2022
6. They shall furnish his photo ID proof and local address proof document before the court and photo ID proof of his sureties.
7. They shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioners 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 July 2022 (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.