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 29 th DAY OF NOVEMBER 2022 Crl.Misc.No.11411/2022 Petitioner : Praman Tiwari, S/o.Vijay Tiwari a/a (accused No.5) 22 years, R/a 201, Pioneer Greenwoods Apartments, Manipal County Road, Aishwarya Crystal Layout, Singasandra, Bengaluru-560 Also R/at Gosain Tola, Mahuaria, Mirzapur Chunar Mirzapur, Uttarpradesh-231001 (By Sri. Sathyanarayana S Chalke. Adv.) V/S. Respondent : State by NCB PS (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioner to enlarge him on bail, in NCB Cr.No. 48/1/24/2022/BZU of NCB PS., registered for the offence punishable U/Sec. 8(c) r/w sec 20B (ii)(A), 23(a), 27, 27(A), 28 and 29 of NDPS 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 no knowledge of alleged crime and falsely implanted at the instance of extraneous elements. The complainant has not seized any contraband from the possession of the petitioner. He is the only earning member of his family. The IO., NCB., issued summons to the petitioner. His statement came to be recorded. Thereafter, he was arrested. His statement recorded after the seizure of contraband. He is doing a private work and searching for job. The parcel was not booked by the petitioner and he is no manner connected to the case. He has no knowledge about CCH-33 Crl.Misc.No.11411/2022 the drugs and about the incident. He is not aware of any persons who set to have imported the contraband from USA. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. 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. He has no bad antecedents. He is the sole bread earner of his family. Hence, sought to grant bail.
3. The objection raised by the prosecution is that on
04/11/2022 basing on the credible information, the IO , NCB had seized 177 grams of hydro ganja and 7 grams of Psilocybine Mushrooms from 2 shipments bearing Nos.UA935905620US and CE985425250US at Foreign Post office, Bangalore. 35 grams of hydro ganja was seized from shipment No.UA935905620US and 142 grams of ganja 7 grams of psilocybine mushrooms were seized from shipment bearing No.CE985425250US. Basing on the controlled delivery of dummy parcel of 2 shipments the present petitioner who had come to collect the parcel was enquired. One parcel bearing No.CE985425250US was addressed to the present petitioner. The petitioner was accompanied by accused No.3 to collect the parcel. Based on their statement accused Nos.1 and 2 were enquired and it is revealed that they were involved in booking the parcels. Basing on the statement of present petitioner and other accused they were prosecuted in the case for committing offences U/s.8(c) R/w.Sec.20b(ii)(A), 22(b), 23(a) (b), 27, 28 and 29 of NDPS Act. There is a prima-facie case available against the petitioner. In the event of grant of bail, he would abscond and may hamper the investigation. 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:
CCH-33 Crl.Misc.No.11411/2022 Point No.1: In the Affirmative Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- The IO of NCB/BZU., has put the
criminal law into motion. The gist of the allegation reads as here under:- On 04/11/2022 basing on the credible information, the IO , NCB had seized 177 grams of hydro ganja and 7 grams of psilocybine mushrooms from 2 shipments bearing Nos.UA935905620US and CE985425250US at Foreign Post office, Bangalore. 35 grams of hydro ganja was seized from shipment No.UA935905620US and 142 grams of ganja 7 grams of psilocybine mushrooms were seized from shipment bearing No. CE985425250US. Both the shipments were sent from Birat Sapkota, Bahunma Enterprises, 8326 N, Crawford Street, Portland, OR 972035438 US. An authorization for the controlled delivery of the parcels were obtained from the NCB Headquarters, New Delhi. In this regard a case has been registered by the IO, NCB in NCB.Cr.No.48/1/24/2022/BZU for the offences punishable U/s.8(c) R/w.Sec.20b(ii)(A), 22(b), 23(a)(b), 27, 28 and 29 of NDPS Act. On 05/11/202 controlled delivery of dummy parcels of two shipments bearing no Nos.UA935905620US and CE985425250US were attempted with the assistance of Foreign post office, Chamarajpet, Begur sub post office, Bengaluru and Jalahalli post office, Bengaluru. Both the receivers were not available at the address. The receiver of the shipment at Begur Praman Tiwari, Pioneer Greenwood Apartment, Manipal country road, Singasandra, Flat No.201, Bangalore 560068, was out of town to his native for the death ceremony of his relative and the receiver of the shipment Hrishikesh Kumar, Raja Industrial Estate, Yeshwanthpur, Block A 502, Ramana Jyothi apartment, 2GJP+85R, Bengaluru Mangaluru HWY 560022 at Jalahalli was not available at his address. Again on 07/11/2022 controlled delivery of the shipment bearing No.CE985425250US was attempted to the receiver Hrishikesh Kumar. Two persons by name Hrishikesh P.Nayak and Suhas Shankar had come to collect the parcel. When they were intercepted by the NCB team and summoned to NCB office for CCH-33 Crl.Misc.No.11411/2022 enquiry, two more persons Ekarya Gupta and Aadish Bohra who were involved in the booking parcels were intercepted at CMS Jain University, Lalbagh road, Bengaluru. The complainant IO served summons on them and enquired them. During voluntary statement they have revealed that they are consuming the contraband and they are doing the trade of contraband. Basing on their statement on the reasonable belief that they are actively involved in drug trafficking, they were apprehended and they were produced before the court and remanded to judicial custody. The present petitioner is one Praman Tiwari who had come to collect the parcel. The investigating agency has issued notice U/s.67 of NDPS Act. He was secured in the office of NCB. The present petitioner used to book the drugs over darknet and supplied to his friends and other customers for making profits. He has master mind for booking this type of drug parcel over darknet and paying by himself and through his friends.
8. It is argued by the learned counsel for petitioner that
he is planted in the case by the complainant he is unaware of seized drug. The seized article is not commercial quantity. 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 177 grams of Ganja and 7 Grams of psilocybine Mushrooms is seized from the parcel booked in the name of the present petitioner. The offence punishable with imprisonment upto 10 years and with fine. There are prima facie material available against him.
10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on 04/11/2022 basing on the credible information, the IO , NCB had seized 177 grams of hydro ganja and 7 grams of psilocybine mushrooms from 2 shipments bearing Nos.UA935905620US and CE985425250US at Foreign Post CCH-33 Crl.Misc.No.11411/2022 office, Bangalore. 35 grams of hydro ganja was seized from shipment No.UA935905620US and 142 grams of ganja 7 grams of psilocybine mushrooms were seized from shipment bearing No. CE985425250US. During controlled delivery operation the present petitioner who came along with accused No.3 to collect the parcel was intercepted and enquired. The parcel is booked in the name of present petitioner by accused No.3 who is the close friend of present petitioner. He has failed to inform the matter to the police knowing fully well about the drug in the parcel. On looking to the seizure panchanama the drugs seized from accused is weighing 177 grams of Hydro Ganja and 7 Grams of psilocybine Mushrooms. 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 the present case 177 grams of hydro ganja is seized which is a small quantity. Likewise at Sl.No.145 the narcotic drug – psilocybine 2 grams is the small quantity and 50 grams is Commercial quantity. In this case 07 Grams of psilocybine mushrooms seized is an intermediate quantity.
11. 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 circumstances, as per the observations of Hon'ble Apex Court the bail plea of accused to be considered.
12. Here in this case the drugs seized by the investigating
agency to the tune of 177 grams of Ganja and 7 Grams of psilocybine Mushrooms which is an intermediate quantity. CCH-33 Crl.Misc.No.11411/2022 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.
13. The major portion of investigation in the case is
concluded as the incriminatory article is already seized in the case. The offence alleged against the petitioner is not punishable with death or imprisonment for life. The allegation against the present petitioner is that he has received the parcel even after knowing that the parcel contain drugs. He used to book drugs over darknet and supplied to his friends and customers for making profits. He has master mind for booking this type of drug parcel over darknet and paying by himself and through his friends. 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. Further custodial interrogation is not warranted. The apprehension of the prosecution that he 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.
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 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 co-operate with I.O for 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.
CCH-33 Crl.Misc.No.11411/2022
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioner would entail cancellation of bail.
[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 29th day of November 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*