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 25th Day OF January 2023
Crl. Misc.No. 475/2023
Petitioner :
(accused No.1)
Nnaji Emmanuel Lotachukwu, S/o.
Lotachukwu aged 23 years, Aba, Abia
State, Obingwa, Nigeria, Africa.
Local Address: No.6, Moinuddin nest,
Telecom Layout, Hennur village,
Bangalore.
(By Sri DP, Adv.)
V/S.
Respondent :
State by Pulakeshinagar Police
Station
(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.214/2022 of
2
Pulakeshinagar PS., registered for the offence punishable
U/Sec.22(b) of N.D.P.S. Act R/w.Sec.14 of Foreigners Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
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. The procedure contemplated under N.D.P.S.
Act not followed while recovery. There is no restriction
U/Sec.37 of N.D.P.S. Act for grant of bail. Petitioner is
permanent resident of the address shown in the cause title.
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 32 grams of narcotic
CCH33
Crl.Misc.No.475/2023
3
substance MDMA from accused Nos.1 and 2.
The offence
alleged against the petitioner is punishable with rigorous
imprisonment upto 10 years and shall also be liable to fine.
There is a primafacie case available against the petitioner. He
is a habitual drug dealer. There is primafacie case made out
against petitioner. If petitioner
is released on bail, he will
continue the profession of narcotic drug selling, and he 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 petitioner has made out
sufficient grounds to enlarge his on
bail?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the Affirmative.
4
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The complainant who is the PSI., of
Pulakeshinagar PS., Bangalore has put the criminal law into
motion. The gist of the allegation reads as here under:
On 28.06.2022 at about 2.30 pm., when the complainant
was in the station he has received credible information that
near a park at Richards Town, Bengaluru limits one Nigerian
national is selling narcotic drugs to customers. He has
immediately informed the matter to his higher officer, obtained
permission to conduct raid.
He along with his staff and
panchas has been to the spot and found one Nigerian national
near the Park along with his Car. The informant has shown the
said person to the complainant. On enquiry he has revealed
his name and address. On enquiry he has revealed that he is
selling MDMA crystals to the students and IT BT Employees.
ACP was called to the spot, he was appraised of his right to
have personal search through a Gazetted Officer. In the
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Crl.Misc.No.475/2023
presence of ACP personal search is conducted. 20 grams of
MDMA crystals seized from accused No.1. of the house they
found 32 grams of MDMA.
The same was seized under
mahazar. Detail report was prepared and submitted to SHO.
Basing on the said report the case in Cr.No.214/2022
registered against him for the offence punishable U/Sec.20(b),
22(b) of N.D.P.S. Act and Sec.14 of Foreigners Act.
Accused
No.1 was arrested and produced before the court.
During voluntary statement he has given the numbers of
persons who have purchased contraband from him.
The
investigating officer has collected the details of the customers
who have purchased contraband from the petitioner.
The
accused No.2 was apprehended basing on the information of
phone numbers given by A.1. From accused No.2 12 grams of
MDMA is seized on 30.6.2022 in front of Empire Hotel, MDM
Road, Frazer Town, Bengaluru. He is put under arrest,
produced before the court and remanded to JC.
The petitioner herein has moved bail petition before this
Court in Crl Misc. 8524/2022 which came to be rejected on
6
17.9.2022.
Now, the investigation in the case is concluded
and charge sheet is filed. This is the 2 nd Bail Petition filed by
the petitioner / A1 on the ground that, as per the FSL report,
the contraband seized in the case is Metaamphetamine and
not 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. 59, Metaamphetamine
2 grams is small quantity and 50 grams is commercial
quantity. The petitioner is in JC since from 28.6.2022. The
investigation is concluded and charge sheet is filed.
The
quantum of contraband seized from the petitioner herein is
Metaamphetamine as per the FSL report and it is intermediary
quantity and therefore, he has to be enlarged on Bail.
8.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
28.6.2022 complainant has conducted raid and apprehended
accused.
On looking to the seizure panchanama the drugs
seized from accused Nos. 1 and 2 is to the tune of 30 grams of
MDMA.
As per the FSL report, the quantum of contraband
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Crl.Misc.No.475/2023
7
seized has responded positive for Metaamphetaminie. 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. 59 the narcotic drugMetaamphetamine
2 grams is small quantity and 50 grams is commercial
quantity. In this case the quantum of ganja seized is 20 grams
from the present petitioner and 10 grams from accused No.2.
The
total
quantum
seized
is
30
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
8
circumstances, as per the observations of Hon’ble Apex Court
the bail plea of accused to be considered.
11.
Here
investigating
in
this
case
the
drugs
to
the
tune
of
agency
Metaamphetamine
seized
30
by
grams
the
of
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 investigation in the case is concluded and
charge sheet filed. Further, the incriminatory article is already
seized from accused. The offence alleged against the petitioner
is not punishable with death or imprisonment for life. Further
custodial
interrogation
is
not
warranted.
His
Voluntary
statement is already recorded. As per the information provided
by the petitioner he is permanently residing in the address
shown in the cause title. The apprehension of the prosecution
that he may abscond and may protract the trial could be
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Crl.Misc.No.475/2023
9
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 petitioner U/Sec.439 of
Cr.P.C is hereby allowed.
The petitioner is enlarged on bail on executing
personal bond for a sum of Rs.1,00,000/ with two
sureties for the like sum with following conditions.
1.
He shall not leave the jurisdiction of
this court without prior permission.
2.
He shall not tamper the witness or
abscond.
3.
He shall not commit similar offence or
any offence while on bail.
4.
He shall furnish his photo ID proof
and local address proof document
before the court and photo ID proof of
his sureties.
5.
He shall appear before the court on all
hearing dates.
6.
Breach of any of the conditions by the
petitioner would entail cancellation of
10
bail.
[Dictated to the stenographer, directly on the computer, typed by her,
corrected, signed and then pronounced by me in Open Court on this
the 25th day of January 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.