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 NOVEMBER 2022
Crl. Misc.No.10881/2022
Petitioner :
(accused No.5)
Okonkwo Benjamin Chukwudi
Mentioned as Benjamin @ Gerald @
Bob in the remand application
S/o.Okonkwo, a/a 32 years, R/at
No.85/19/2, Sai Green Woods
Layout, Shingayakanahalli,
Bengaluru
(Accused is in JC)
(By Sri.Nishit Kumar Shetty, Adv.)
V/S.

Respondent :
State by Amruthahalli PS.
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner/accused
No.5
to
enlarge
him
on
bail,
in
2
Cr.No.253/2022 of Amruthahalli
PS., registered for the
offence punishable U/Sec.22(b) of NDPS Act.

2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is 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 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 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 3 grams of Cocaine, 15
Ecstasy Pills
from the accused Nos.1 and 2.

The offences
3
CCH­33
Crl.Misc.No.10881/2022
alleged against the petitioner is punishable with rigorous
imprisonment for a term upto 20 years and shall also be liable
to fine.

There is a primafacie case available against the
petitioner. He is 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 him 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:
4
REASONS
7.

POINT
NO.1:­
A
report
submitted
by
ASI,
Amruthahalli., who is the complainant in this case before the
Amruthahalli PS. The contents of the report is as here under:­
On 20.10.2022 at about 4.30 pm., the complainant has
received an information through an informant through the ACP
of Sampigehalli that at Lumbini Garden, Service road within
the limits of Amruthahalli police station., two persons are
selling cocaine and ecstasy pills to the public. On receipt of
the information as the PSI of the said jurisdiction was on some
other duty, ASI along with staff and panchas had been to the
spot and found the suspected persons. They were carrying
bags.

On enquiry they have revealed their names and
addresses.

On questioning the contents of bag they have
stated that they are possessing three grams of cocaine and 15
ecstasy pills.

On search of the bags they found 3 grams
cocaine and 15 ecstasy pills.

Thereafter, a detail seizure
panchanama was drawn. A detail report was prepared &
submitted before SHO which is the basis to register the case
CCH­33
Crl.Misc.No.10881/2022
5
against the accused Nos.1 & 2 in
Cr.No.253/2022 of
Amruthahalli
offence
PS
registered
for
the
punishable
U/Sec.22(b) of NDPS Act and Sec.14 of Foreigners Act.
Thereafter the accused were arrested and produced before
jurisdictional Magistrate and were remanded to JC.
During voluntary statement of accused No.1 he has
stated that the A3 is one of his customers, he was purchasing
contraband from him and resell the same.

Further, on
16.10.2022 the accused No.3 had purchased 15 ecstasy pills
from accused No.1.

On 25.10.2022 at about 2.30 pm.,
complainant has arrested the A3. On 30.10.2022 the present
petitioner/A5 was arrested. During voluntary statement he has
stated that he is in possession of cocaine. He has shown the
house to the investigating agency which is situated in house
bearing No.85, Near Ammani Lake, Sai Green wood Layout,
Singanayakanahalli Post, Yelahanka, Bangalore. When he was
taken to the house, in the second floor the said cocaine was
taken out by the accused No.5 and handed over to the police.
He has also produced one weighing machine. The cocaine was
6
weighing 4 grams. A detail mahazar has been drawn in the
spot. His bank details were also collected.
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 resident 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. It is argued by the prosecution that the petitioner has
committed heinous offence 4 grams cocaine is seized from the
petitioner herein. The offence is punishable with imprisonment
upto 10 years and with fine.

There are prima­facie material
available against him.

10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that ASI,
Amruthahalli
police
station
has
conducted
raid
and
CCH­33
Crl.Misc.No.10881/2022
7
apprehended the accused persons. On looking to the seizure
panchanama the quantum of contraband seized from accused
Nos.5/present
petitioner
is
4
grams
cocaine.

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.27 the narcotic drug – Cocaine 02 grams
is small quantity and 100 grams is commercial quantity. In
this case the quantum of Cocaine seized from accused
No.5/present petitioner is 04 grams which is 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 MDMA, 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.

8
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 4 grams of cocaine. 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 petitioner is not punishable with
death or imprisonment for life. Further custodial interrogation
is not warranted.

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
CCH­33
Crl.Misc.No.10881/2022
9
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 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.

The petitioner 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.

He shall not leave the jurisdiction of this
court without prior permission.

3.

He shall not tamper the witness or abscond.

4.

He
shall
co­operate
investigation.

5.

He 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.

with
I.O
for
10
7.

He shall appear before the court on all
hearing dates.

8.

Breach of any of the conditions by the
petitioners would entail cancellation of
bail.

9.

He shall surrender his passport before
the court.

[Dictated to the Judgment Writer, 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 November, 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/­