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 21st DAY OF DECEMBER 2022
Crl. Misc.No.12124/2022
Petitioner :
(Accused No.2)
Nadeem Pasha, S/o.Abdul Gaffar,
a/a 29 years, r/at No.301, 3rd Cross,
HAL 2nd Stage, Kodigehalli,
Bengaluru­560008
(By Sri.Pradeep K.S. Adv.)
V/S.

Respondent :
State of Karnataka by Chandra
Layout Police
(By Public Prosecutor)
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
filed
by
the
petitioner
to
enlarge
him
on
bail,
in
Cr.No.122/2022 for the offences punishable U/Sec.20 (B) of
N.D.P.S. Act after filing of charge sheet.

2
2. The prevalent grounds urged seeking bail:­
That the petitioner is very innocent and law abiding
citizens.

He has
offence as alleged.

not committed any offence much less the
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. 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. 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 81 Kgs., 450 grams of ganja
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. In the event of his release he may
tamper with the prosecution witnesses. Incriminatory articles
CCH­33
Crl.Misc.12124/2022
3
were seized from his custody.

He may involve himself in
similar
agency
offences.

Investigating
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?

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:
4
REASONS
7. POINT NO.1:­ The PI of Chandra Layout PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:­
On
22.4.2022
at
about
12.30
p.m.,
when
the
complainant was in the police station he has received credible
information that two unknown persons are transporting the
ganja in Ashok leyland vehicle bearing No. KA­04 AB 8637 and
they are going via Nayandanahalli Ring road to Ramanagara by
using Mysore road. He has informed the matter to his Higher
Officer and obtained permission to conduct raid.

He along
with his staff and panchas went to Nayandanahalli Suvarna
layout, opposite ring road and mounted surveillance. The
vehicle bearing No.KA 04 AB 8637 came there. They stopped
the said vehicle and apprehended the accused No.1 and 2. On
enquiry, they have revealed their names and identity. During
vehicle search the complainant seized 81 Kgs., 450 grams of
ganja under mahazar. Thereafter, a detail seizure panchanama
was drawn. A detail report was prepared and submitted before
CCH­33
Crl.Misc.12124/2022
5
SHO which is the basis to register a case against the accused
Nos.1 and 2 in crime No.122/2022 for the offences punishable
under section 20(B) of NDPS Act. Thereafter they were arrested
and produced before jurisdictional Magistrate and were
remanded to JC. The petitioner herein is Accused No.2 in the
case.

Investigating agency after conclusion of investigation
filed charge sheet before the court.

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. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 20 years and fine.

In the event of grant of bail he is
going to abscond and may hamper investigation.

6
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 81 Kgs., 450 grams of ganja under the seizure
panchanama from the accused which was being carried by him
in a bag.

On looking to the seizure panchanama the drugs
seized is weighing 81 Kgs., 450 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 81 Kgs., 450 grams which
is a commercial quantity. Investigation is concluded and
charge sheet is filed.

In the judgment of Hon’ble High Court of Karnataka in
Crl.Petition
No.5358/2015
State
of
Karnataka
Vs.,
D.B.Sandeepa dt.3.3.2016 has observed that mere filing of
charge sheet against persons accused of heinous offences
cannot be the reason to release them on bail. The trial courts
7
CCH­33
Crl.Misc.12124/2022
will have to keep in mind the guidelines issued by the Hon’ble
Apex Court from time to time for examining the nature in
gravity of the offences, severity of punishment in the event of
conviction, danger of absconding if released on bail, and facts
and circumstances in each case before granting bail to the
accused.

The Hon’ble High Court passed the order while
canceling the bail granted by the learned Sessions Judge.
The Hon’ble Apex Court in the recent judgment in the
case of bail in NDPS cases held that the length of period of
custody or the fact that charge sheet has been filed and trial
has commenced are by themselves not considered that can be
treated as primafacie grounds for granting relief to the accused
U/s.37 of NDPS Act. In the said case the order of Hon’ble High
Court of Delhi in the case of NCB Vs., Mohit Agrawal in
Crl.Appeal No.1001­1002/2022 dated 19.7.2022 granting post
arrest bail to the accused has been challenged. In the said case
the Hon’ble Apex Court has set aside the order of Hon’ble High
Court of Delhi granting the post arrest bail to the accused. It
is observed that the term reasonable grounds used in Clause
(b) of sub section (1) of Sec.37 would signify grounds for the
8
court to believe that accused is not guilty of the alleged
offence. It also means trustworthy and plausible. An addl.,
factor that goes in hand in hand with the aforementioned
satisfaction is the likelihood that the accused wont conduct
any crimes while out on bail. The Hon’ble Apex Court with a
detail discussion on the points raised in the said petition set
aside the order of Hon’ble High Court of Delhi granting post
arrest bail.
Here in this case there is seizure of commercial quantity
of contraband from the joint possession of petitioner and
accused No.1. Mere filing of charge sheet in a case of heinous
offence is not a ground to enlarge him on bail.
11.

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 to refer to 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
9
CCH­33
Crl.Misc.12124/2022
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 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
10
order does not absolve it of the level of scrutiny required
under Section 37(1)(b)(ii) of the NDPS Act.”
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.
(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 is 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
11
CCH­33
Crl.Misc.12124/2022
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
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 himselves 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 :
12
“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 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
CCH­33
Crl.Misc.12124/2022
13
petitioner or not. At this juncture, we cannot say that the
petitioner is 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 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
are not guilty and that he is not likely to commit any offence
while on bail.

Here in the present case the petitioner was
apprehended and 81 Kgs., 450 grams of ganja was seized from
him and other accused.

The quantity of the contraband is
commercial quantity. At this stage, there are prima­facie
14
materials available against the petitioner in regard to the
possession
of
narcotic
drug.

Investigating
agency
after
conclusion of investigation filed charge sheet before the court.
There are no addl. Grounds made out by the petitioner to grant
bail. In the result, I proceed to hold that the petitioner herein
has not made out any grounds to entertain his 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 21st day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.