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 27 th DAY OF SEPTEMBER 2022 Crl. Misc.No.8928/2022 Petitioner : P Appanna, S/o.late Simhachalam, (accused No.1) 39 years, R/at.Thataluru Grama village, Nelagonda post, Kuyuru Mandalam, Padaru Taluk, Vishakapatnam district, Andhra Pradesh. (By Sri GM., Adv.) V/S. Respondent : State by Anapurneshwarinagar Police (By Public Prosecutor) O R D E R This is the second bail present petition U/Sec.439 of Cr.P.C., filed by the petitioner to enlarge him on bail, in Cr.No.156/2021 (Spl.C.C.63/2022) of Anapurneshwarinagar PS., registered for the offence punishable U/Sec.20(B)(ii)(c) of N.D.P.S. Act and Sec.25(iB)(b) of Arms Act.

2. The prevalent grounds urged seeking bail:-

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. Investigation is completed and charge sheet has been filed. Further custodial interrogation is not warranted. The accused No.2 has already been granted bail by the Hon'ble High Court in Crl.Petition No.5561/2022. The allegation against the present petitioner is similar to the allegation against accused No.2. On the ground of parity he has to be enlarged on bail. 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 in all 110 Kgs., of ganja CCH-33 Crl.Misc.8928/2022 which is commercial quantity. There are sufficient materials 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 were seized from his custody. He may involve himself 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:

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, Annapurneshwari Nagar PS.,

Bangalore has put the criminal law into motion. The gist of the allegation reads as here under:- The complainant along with his staff were on patrolling duty on 4.7.2021 at 11.45 am., he has received credible information about illegal transportation of ganja in one White Mahendra Xylo car bearing No.KA 01 AK 6030 proceeding from Devanahalli, Hebbala, Gorguntepalya, Kotigepalya towards Ambedkar college Nagarbavi Deepa Complex, towards Muddinapalya to Ullala. On receipt of the information he has informed to his higher officer, obtained permission and thereafter, he along with his staff and panchas has been to the junction and were waiting for the arrival of the car. At about 12.35 noon the said car came there and when it was taking CCH-33 Crl.Misc.8928/2022 turn towards Muddenapalya main road, they all surrounded the said car and apprehended two persons. On enquiry they have revealed their names as Appanna and Subramani. During search of the car they seized 110 Kgs., of ganja and a 20 inch dragger from the car. A detail seizure panchanama was drawn. Thereafter, he has prepared a detail report and submitted before the SHO, which is the basis to register the case against the accused in Cr.No.156/2021 for the offence punishable U/s.20(B)(ii)(c) of NDPS Act & U/s.25(iB)(B) of Arms Act. The accused Nos.1 and 2 are arrested, they were produced before the court and remanded to judicial custody. The investigating agency on conclusion of investigation filed the charge sheet against the accused Nos.1 and 2. The present petitioner is accused No.1.

9. It is argued by the prosecution that the petitioner has

committed heinous offence and 110 Kgs., of ganja has been seized from the possession of the petitioner herein. The petitioner herein is a habitual drug peddler. In the event of his release he may abscond and the trail of the case would be prolonged.

10. On careful analysis of rival contentions and the

prosecution papers available on record, the investigating agency seized huge quantum of ganja i.e., 110 Kgs., of ganja from the car wherein the petitioner herein was traveling. During search of the car the bags containing contraband is seized. 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 the present case ganja seized weighing 110 Kgs., is commercial quantity.

11. The petitioner herein and accused No.2 were

traveling in a car where 110 Kgs., of ganja which was stored in the car was seized. According to present petitioner he has purchased the ganja as per the say of accused No.3 who is absconding. Present petitioner was traveling with accused No.2. The car was belonging to accused No.3. CCH-33 Crl.Misc.8928/2022

12. It is argued by the learned counsel for the petitioner

that accused No.2 has been granted bail by the Hon'ble High Court on the ground of parity he is also entitled for bail. It is further urged that the petitioner is no way connected to the crime. It is to be appreciated that the present petitioner is apprehended along with accused No.2 in a vehicle where they were carrying commercial quantity of ganja. The investigating agency in the presence of panchas and the higher officers have seized the ganja under a detail mahazar. Further in the vehicle weapon was also found. As per the investigation report ganja was procured from Narisipatna of Vishakapatnam from an unknown person who is staying at a hilly area. If at all the petitioner is not involved in transporting the contraband, what made him to travel with accused No.2 carrying huge quantum of ganja. In the statement the present petitioner has stated he was selling ganja for his livelihood. At this stage there is no grounds made out by the petitioner that he is innocent of commission of offence.

13. 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 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 CCH-33 Crl.Misc.8928/2022 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 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 be considered and has to be evaluated by the court to consider the bail plea of the accused. Here in the present case the petitioner herein was apprehended along with accused No.2, 110 Kgs., of ganja seized from the car of accused No.3 where accused No.2 and present petitioner were traveling. There is no explanation by CCH-33 Crl.Misc.8928/2022 the petitioner as to why he was traveling in the car where huge quantum of ganja is being concealed. The quantity of contraband is commercial quantity. Filing of charge sheet itself indicates the involvement of present petitioner along with other accused in the crime. The material placed on record by the investigating agency primafacie indicates the role of petitioner in the crime. At this stage, there are primafacie materials available against the petitioner in regard to the transportation of commercial quantity of contraband. 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.

14. 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 27th day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*