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 22nd DAY OF DECEMBER 2022
Crl. Misc.No.12111/2022
Petitioner :
(accused No.1)
Pavish, 33 years, S/o.Shivashankar,
No.282, 2nd Floor, Samrudhinilaya,
Sri Devi Karumariamma temple road,
Behind Green Hood School, White
Field, Bengaluru 560 037.
permanent residence at:
Pattekat House, Karilam village,
Karilam Mandal, Iringalakuda city,
Thrisur District, Kerala State.
(By Sri NM., Adv.)
V/S.

Respondent :
State by Whitefield Police
(By Public Prosecutor)
ORDER
The petitioner has filed this petition U/Sec.439 of
Cr.P.C., to enlarge him on bail, in Crime No.326/2022 of
Whitefield
Police Station registered for the offences
punishable U/Section 8(c) & 22(c) of N.D.P.S. Act.

2
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. Petitioner is
permanent resident of Kerala and came to Bangalore for
work and his entire family depends on the earnings of the
petitioner. He is no way connected to the crime. 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 138 grams of MDMA
which is a commercial quantity from accused No.1 and 2.
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
CCH­33
Crl.Misc.12111/2022
3
to fine.

The investigation is pending.

If the petitioner is
granted bail he may tamper with the prosecution witnesses.
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 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 Negative
Point No.2: As per the final order for the following:
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REASONS
7. POINT NO.1:­ The PSI of Whitefield
the criminal law into motion.

PS., has put
The gist of the allegation
reads as here under:­
On 9.1.2022 at 2.45 pm., when the complainant was
in the police station he has received credible information
that at Pattandhuru Agrahara, DTDC Express Ltd., courier
service two persons who came to the spot in their scooter
carrying MDMA contraband. On receipt of information the
PSI., informed the matter to the higher officer, obtained
permission
to conduct raid.

He along with panchas and
staff had been to the spot at 3.45 pm., and mounted
surveillance in the spot.

Two persons were found in the
spot. On enquiry they have revealed their names as Pavish
S/o.Shivashankar and Abijit S/o.Manikyam C When they
were questioned about the contents of the box they have
stated that the box contain doll and in the doll there is
MDMA contraband and they are sending the parcels to fake
addresses.

When they were further enquired about
possessing any contraband. They have stated that they are
possessing contraband in their pant pocket. Their personal
search is conducted through a gazetted officer. 88 grams of
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CCH­33
Crl.Misc.12111/2022
MDMA is recovered at the time of search. A detail mahazar
is drawn in the spot. The accused were arrested. Basing on
the detail report, case in Cr.No.326/2022 is registered
against the accused for the offences punishable U/s.8(c),
22(c) of NDPS Act.

The accused are produced before the
Court and remanded to JC.
Their voluntary statement came to be recorded. After
recording their voluntary statement search is conducted in
the house of accused Nos.1 and 2. Further, accused No.3 is
arrested basing on the voluntary statement of accused Nos.1
and 2.

During house search of accused No.1 and 2
weighing machine and 50 grams of MDMA is seized. A detail
panchanama is drawn in the spot.

Accused No.1 to 3
brought to Police Station. Accused Nos.1 to 3 were taken to
police custody,. They were further interrogated. Basing on
their statement search is made to apprehend accused No.4.
The bank details and phone details of accused Nos.1 to 3
are collected. Basing on the phone details one Moheez Khan
is secured by the investigating agency he is enquired, but no
information is obtained in regard to his role in the drug
6
trafficking. He has also stated that he is having no contact
with accused No.1.

8. It is vehemently argued by the learned counsel for
the petitioner that the quantum of contraband seized from
the present Petitioner is not commercial quantity, hence, he
is entitled for bail.

Search and seizure are vitiated by
inherent procedural impropriety. The mandatory provisions
of law have not been followed thereby causing serious doubt
on the investigation, search and seizure procedure. He is no
way connected to the drugs which were seized in the case.
The major portion of investigation is concluded. Custodial
interrogation is not warranted. He is entitled for bail.

9. It is argued by the prosecution that the petitioner
has committed heinous offence and it is punishable with RI
upto 20 years.

The petitioner may involve in similar
offence, if he is released on bail.

There are prima­facie
material available against him.
10.

On careful analysis of rival contentions, the
investigating agency seized 138 grams of MDMA under the
seizure panchanama. As per specification of small and
CCH­33
Crl.Misc.12111/2022
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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.134 the narcotic drug – MDMA weighing 10 grams is a
commercial quantity. In the present case narcotic substance
MDMA weighing in all 138 grams seized is a commercial
quantity. The contention of the petitioner that the petitioner
is in JC, the major portion of investigation is concluded and
his further detention is not warranted is unsustainable, the
petitioner herein is apprehended with commercial quantity
of contraband by the investigating agency.

11. The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic
drugs and psychotropic substances. 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 prima
facie
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 themselves to justify
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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 while considering an appeal against an order of the
High Court allowing the second bail petition of the
respondent who was petitioner under the NDPS Act 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 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
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CCH­33
Crl.Misc.12111/2022
being in force regulating the grant of bail. Liberal approach
in the matter of bail under the Act is uncalled for.”
In 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.
Apex Court
In the said case the Hon’ble
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
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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 non­
application 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
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CCH­33
Crl.Misc.12111/2022
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.
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
12
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 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 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 is not guilty and that he is not likely to commit
any offence while on bail. In this case, 138 grams of MDMA
seized from the accused. At this stage, there is primafacie
material available against the petitioner in regard to the
possession of narcotic drug.

The learned counsel for
petitioner has failed to place any material before this court
that he was not in possession of NDPS article at the time of
his apprehension and search. In the result, I proceed to
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CCH­33
Crl.Misc.12111/2022
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.
12. 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 22nd day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.

.