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 6th DAY OF AUGUST 2022
Crl. Misc.No.8422/2022
petitioners :
(accused No.2 & 4)
1. Mohan Das, s/o.Mdhu Das, 25
years, No.16, Kempegowda
Building, Muneshwara Temple
road, Beside Kuvempu Adarsh
School, RMV II stage,
Nagashettihalli, Bangalore 560
094.
2. Gayas Pasha, s/o.Anwar Pasha,
24 years, R/at.No.92/A, 2nd
Cross, 5Th Main, RNS
Sanjaynagar, Bangalore 560
094.

(By Sri.CS., Adv.
V/S.

Respondent :
State by Vijayanagar PS.
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by
the petitioners to enlarge them on bail, in Cr.No.96/2022 of
2
Vijayanagar PS., registered for the offences punishable
U/Sec.8(c) & 20(b) & 22(b) 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 their 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 5 grams of MDMA and 3
Kgs., 750 grams of ganja. The offences alleged against the
petitioners are punishable with rigorous imprisonment for a
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CCH­33
Crl.Misc.No.8422/2022
term upto 10 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 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 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, ., who is
the complainant in this case before the Vijayanagar PS. The
contents of the report is as here under:­
4
On
19.8.2022
at
about
10.00
am.,
when
the
complainant was on patrolling duty he has received credible
information from an informer that 4 persons will come
beside Vijayanagar club road, near govt., first grade college
to sell ganja to the public.

He has informed the Higher
Officer and obtained permission to conduct raid. He went to
the
spot
and
saw
the
suspected
persons.

He
has
apprehended them and on enquiry and during personal
search he has seized 05 grams of MDMA and 3 Kgs., 750
grams of ganja.

Thereafter, a detail seizure panchanama
was drawn. A detail report was prepared and submitted
before SHO which is the basis to register the case against
the accused in Cr.96/2022 for the offence punishable
U/s.8(c), 20(b) & 22(b) of NDPS Act. Thereafter accused was
arrested and produced before jurisdictional Magistrate 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
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CCH­33
Crl.Misc.No.8422/2022
permanent residents of the address given in the cause title.
In the event of grant of bail the are ready to abide by the
conditions which are being imposed by this court.

9. It is argued by the prosecution that the petitioners
have committed heinous offence 05 grams of MDMA and 3
Kgs., 750 grams of ganja is seized from the petitioners. The
offence punishable with imprisonment upto 10 years and
with fine.

There is prima­facie material available against
them.

10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
19.8.2022 PSI of Vijayanagar PS., has conducted raid and
apprehended the petitioners. On looking to the seizure
panchanama the drugs seized is weighing 05 grams of
MDMA and 3 Kgs., 750 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
6
this case the quantum of ganja seized is 3 Kgs., 750 grams
of ganja is an intermediate quantity. Likewise at Sl.No.134 –
narcotic drug MDMA 0.5 grams is small quantity and 10
grams is commercial quantity. In the present case quantum
of MDMA seized is 5 grams which 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.

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
3 Kgs., 750 grams of
ganja and 5 grams of MDMA which is an intermediate
CCH­33
Crl.Misc.No.8422/2022
7
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. Their Voluntary statements
of the accused is already recorded. As per the information
provided by the petitioners they are permanently residing in
the addresses 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.

8
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
abscond.

4.

They shall
investigation.

5.

They shall not commit similar offence or
any offence while on bail.

6.

He 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.

not
tamper
co­operate
the
with
witness
I.O
or
for
[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 6h day of September 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*