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 19th DAY OF JANUARY 2023
Crl. Misc.No.18/2023
Petitioner :
(accused No.3)
Smt.Mubarqak, C/o.Mastan,, Aged
about 35 years,
R/at 12th Cross, Ramasandra Main
Road,
Dodda Basti, Bangalore
(By Sri.R.R.., Adv.)
V/S.
Respondent :
State of Karnataka by K.G Nagar
Police
(By Public Prosecutor)
ORDER
This the bail petition U/Sec.439 of Cr.P.C., filed by the
petitioner to enlarge her on bail, in Cr.No.134/2022 for the
offence punishable U/Sec.20(b)(ii)(c) and 27 A of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:
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That the petitioner is very innocent and law abiding
citizen.
She has not committed any offence much less the
offence as alleged.
She is planted in the case by the
complainant police. She is unaware of seized drug. Section 50
NDPS Act not complied. No specific recovery from the present
petitioner. There is delay in conducting personal search. Joint
recovery is in bad in law. She had no criminal antecedents.
She is permanent resident of the address given in the cause
title. In the event of grant of bail,she is ready to abide by the
conditions which are being imposed by this court. Though the
alleged offence is 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 petitioner is ready and willing to abide by any conditions
imposed by this court in the event of grant of bail. She is ready
to offer surety for her 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 506 Kg, 700 grams of ganja
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Crl.Misc.18/2023
which is a commercial quantity. There are sufficient material
available against the petitioner, and the said offences are
punishable with rigorous 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 she may tamper with the prosecution
witnesses.
Incriminatory articles were seized from her
custody.
She may involve herself 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:
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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 PSI of K.G Nagar PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On 12.09.2022 at about 1.00 p.m,, the complainant was
in the police station he has received an information that at
Nanjmbaha Agrahara, Kempambudhi lake North gate, KG
Nagar, Bangalore a lady along with 45 persons is selling ganja
to the public.
On receipt of the information he has made a
note in the station house diary, informed the matter to higher
official, obtained the permission to conduct raid. Thereafter,
the complainant along with his staff and panchas had been to
the spot at around 2.20 pm., and mounted surveillance in the
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Crl.Misc.18/2023
spot and found an auto rickshaw and a two wheeler.
The
persons who were there in the auto rickshaw were trying to sell
the contraband to the public. A decoy was sent by the
complainant towards the said suspected persons. The decoy
had signaled, immediately the complainant and his staff
surrounded them and on enquiry the said persons have
revealed their names and addresses. They were questioned
about the contents of the bag. They have stated that they are
selling ganja to the public. The contents of the bag was
checked. In the bag there is ganja balls, leaves and dry ganja
and on weighing the same the total weight of the contraband is
16 Kgs., 700 grams. When the autorickshaw was checked in
that there was a bag . The bag was opened and the contents
were checked. It was containing ganja leaf like substance and
it was looking like ganja balls. The weight of the ganja came
around 50 kgs. The total weight 66 kgs 700 gms.
The voluntary statement of the accused persons was
recorded. In the voluntary statement of the accused persons
they have stated that they had purchased huge quantum of
ganja from one Eju and Chandu of Andhra Pradesh and stored
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in the house of accused No.3. On conducting raid of the house
of accused No.3 they further seized 440 Kgs., of ganja. Accused
No.1 in the case is Nawaz pasha., accused NO.2 Noor
Mohammed, accused NO.3 is Smt.Mubarak, A4 Imran Pasha,
A5 Kiran The complainant has seized the ganja under detail
mahazar. He has arrested the accused No.1 to 3. He has
prepared detailed report which is the basis to regsiter the case
in Crime NO.134/2022 for the offences punishable U/s.20(b),
(ii), (c), and U/s27A of NDPS Act, 1985.
8. It is argued by the learned counsel for petitioner that
she is planted in the case by the complainant police. She is
unaware of seized drug. Section 50 NDPS Act not complied.
No specific recovery from the present petitioner. There is delay
in conducting personal search. Joint recovery is in bad in law.
She had no criminal antecedents. She is permanent resident of
the address given in the cause title. In the event of grant of
bail She is ready to abide by the conditions which are being
imposed by this court.
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Crl.Misc.18/2023
9. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 10 years.
In the event of grant of bail she is going to
abscond and may hamper investigation.
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 506 Kg, 700 grams of ganja under the seizure
panchanama from accused No.1 to 5 which was being carried
in autorickshaw bearing No.KA03 AH 5735. On looking to the
seizure panchanama the drugs seized is weighing 506 Kg, 700
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 drug
ganja 1000 grams is small quantity and 20 Kgs., is commercial
quantity. In this case the quantum of ganja seized is 506 Kg,
700 grams
which is a commercial quantity.
petitioner is accused No.3 in the case.
The present
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11. The learned counsel for petitioner argues that there is joint
recovery in the case. There is no specific recovery from the
present petitioner. Therefore, petitioner is entitled for bail. It is
pertinent for me to note that when the ride is conducted
accused NO.1 to 5 were together and there was recovery of
huge quantum of ganja from the bags as well as from the
autorickshaw. When the house search of present petitioner is
conducted huge quantum of ganja i.e., 440 kgs of ganja is
seized . The present petitioner is accused No.3 in the case.
From the conscious possession of present petitioner and other
accused the contraband ganja recovered is 506 kgs 700 gms
.Therefore when there is huge quantum of contraband at the
instance
of
present
petitioner
and
other
accused
the
contentions raised by the learned counsel for the accused
could not be entertained to consider the bail plea of petitioner.
Learned counsel for petitioner has referred to the order of
Hon’ble High Court of Karnataka in Crl. Petition NO.343/2022
dated 14.03.2022 in the case of Muheed Khan Vs. State by
Cen Crime Police dated 14.03.2022. The Hon’ble High Court
9
Crl.Misc.18/2023
granted bail to the accused in the said case on looking to the
facts of the said case. The facts and circumstances in the said
case differs from the present case as the petitioner herein is
sitting in the vehicle along with ganja bags. Therefore with due
respect the order referred to by learned counsel for petitioner
may not be made applicable to the present case. He has also
referred to the order of Hon’ble High Court of Bombay reported
in AIR online 2022 Bombay 179 Sholadoye samuel Joy Vs.
State of Maharashtra for a proposition that when the accused
is not appraised of his right to be searched before aG Gazette
officer or Magistrate, when there is non compliance Section 50
of NDPS Act Court has granted bail to the accused. Herein the
present case, the seizure of ganja is from the vehicle of the
petitioner
and
the
house
of
the
petitioner.
Therefore,
compliance of Section 50 in regard to personal search is not
warranted.
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
10
to refer to the judgment of Hon’ble Apex Court in Crl. Appeal
No.104134/2021 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:
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
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Crl.Misc.18/2023
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.
12. 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.
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(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 held to be 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
“reasonable grounds” means something more than
primafacie grounds. It contemplates substantial probable
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Crl.Misc.18/2023
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 they are charged and further that they
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.”
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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 they are not likely to commit
any offence while on bail alone will entitle them 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 they 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 aforesaid 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
are not guilty and that she is not likely to commit any offence
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while on bail.
Crl.Misc.18/2023
Here in the present case the petitioner along
with other accused was apprehended and 506 Kg, 700 grams
of ganja was seized from the vehicle of petitioner, house of
petitioner and the bags which was found in the possession of
petitioner and other accused. The quantity of the contraband
seized in the case is commercial quantity. At this stage, there
are primafacie materials available against the petitioner in
regard to the possession of narcotic drug.
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.
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 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 19th day of January 2023]
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(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.