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 18th DAY OF JANUARY 2022
Crl. Misc.No.73/2023
Petitioner :
(accused)
Sri.Mohammed Zaid,
S/o.Abdul Wahid,
Aged 24 years,
R/at No.08, Ist C Cross,
Sudama Nagar,
Wilson Garden, Bengaluru.
(By Sri Lokesh Y, Adv.)
V/S.
Respondent :
State by Jeevan Bheema Naga Police
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.296/2022 of
J.B.Nagar PS., registered for the offences punishable U/Sec.
22 (C) of N.D.P.S. Act.
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[
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. There is no connection or active part played
by this petitioner. The procedure contemplated under N.D.P.S.
Act not followed while recovery. Petitioner is permanent
resident of
Nigeria.
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 19 grams M.D.M.A from the
accused persons. The MDMA seized is a commercial quantity.
There are sufficient materials available against the petitioner
and
the
said
offences
are
punishable
with
rigorous
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3
imprisonment for a term which shall not be less than 10 years
which may extend to 20 years and shall also be 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?
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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 SI, JB Nagar PS., Bangalore has put
the criminal law into motion. The gist of the allegation reads
as here under:
On 31.12.2022 at 15.00 hours, when the complainant
was in the police station has received credible information that
a person has come to sell MDMA near a vacant place next
Nandanam hotel, 100 ft. road, Indira nagar. After receipt of
the information he has informed to his superior and obtained
permission to conduct raid. He along with the panchas and
staff had been to the spot at 4.00 p.m., the suspect was there
in the spot, he was surrounded and apprehended, on enquiry,
he has revealed his name and address.
During personal
search, 19 grams of MDMA was found and seized under
mahazar.
Sample was taken for forensic examination.
A
detailed report is submitted to JB Nagar PS which is the basis
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to register the case against the accused persons and petitioner
herein in Cr.No.296/2022 of JB Nagar PS., registered for the
offences punishable U/Sec. 22(c) of N.D.P.S. Act.
8. It is vehemently argued by the learned counsel for the
petitioner that petitioner he is falsely implicated in the said
case. The quantity seized from the possession of the accused
is less than commercial quantity. The major portion of
investigation is concluded.
Custodial interrogation is not
warranted. He is entitled for bail.
9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were seized from his
custody. There are primafacie material available against him.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 19 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 Sl.No.134
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the narcotic drug MDMA weighing 10 grams is a commercial
quantity. In the present case 19 grams of MDMA narcotic
substance is seized which is a commercial quantity.
11.
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. In 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:
2. 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
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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.
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3. 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.
Hon’ble Apex Court
Further, at Para30 the
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 co
accused;
(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.
12.
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.
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13. 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 prima
facie 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 Hon’ble Apex Court in the case
of State of MP Vs., Kajad reported in 2001(7)SCC 673 while
considering an appeal against an order of the High Court
allowing the second bail petition of the respondent who was
petitioner under the NDPS Act 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).
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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 is not guilty of the
offences with which he is charged and further that he is 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 is not
guilty of such offence and that he is not likely to commit any
offence while on bail alone will entitle him 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 is not guilty of the offence if the allegations made in
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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 he is 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
is not guilty and that he is not likely to commit any offence
while on bail. Here in the present case the petitioner herein
was apprehended and 19 grams of MDMA. The quantity of
contraband is commercial quantity. At this stage, there is
primafacie material available against the petitioner in regard to
the possession of narcotic drug.
The learned counsel for
petitioner has failed to place any material before this court that
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he was not in possession of NDPS article at the time of his
apprehension and search.
In the result, I proceed to hold that
the petitioner herein has not made out any grounds to
entertain their plea for bail. Accordingly, I answer point No.1 in
the negative.
14. 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 18th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.