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 27th JANUARY, 2023
Crl.Misc.No.553/2023
Petitioner :
(accused No.4 & 5 )
4. Rajesh,
S/o.Late.Muniraju,
Aged about 21 years,
R/at No.51, Kamaraja Road,
Fruit Street, Shivajinagara,
Bangalore.
5. Maqsood.S.,
S/o.Late.Saleem,
Aged about 21 years,
R/at No.29, 5th Main,
Priyardarshini Layout,
Moodalapalya,
Bangalore.
(Accused NO.4 & 5 in
Judicial Custody)
(By Sri.Srinivasa.C. Adv.)

2
V/S.
Respondent :
State by Vijayanagar PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.3/2023 of
Vijayanagar PS., registered for the offence punishable U/Sec.
8(c), 20(b) of NDPS Act.
2. The grounds urged by the petitioners for grant of bail
are as under:
That the petitioners are very innocent and law abiding
citizen. They have not committed any offence much less the
offence as alleged. They have no knowledge of alleged crime
and falsely implanted at the instance of extraneous elements.
The mandatory provisions U/s.50 of NDPS Act has not been
complied.

There are no eye witnesses who speak about the
sale of alleged contraband. Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. The petitioners are ready and willing to
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CCH­33
Crl.Misc.No.584/2023
abide by any conditions imposed by this court in the event of
grant of bail.

They are ready to offer surety for his due
appearance before this court. They have no bad antecedents.
They are the sole bread earner of their family. Hence, sought
to grant bail.

3. The objection raised by the prosecution is that the
investigating agency has in all seized 1 Kgs 400 grams of ganja
from the possession of the accused. The accused is found to
be in possession of narcotic substance. A detailed mahazar is
drawn in the spot. Personal search is conducted. The offence
alleged against the petitioners are punishable with rigorous
imprisonment for a term which shall extend upto 10 years.
There is a primafacie case available against the petitioners.
They are an habitual drug dealer. In the event of grant of bail,
they 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.

4
5. The points that arise for my consideration are as here
under:
1. Whether petitioners have made out
sufficient grounds to enlarge them 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:
REASONS
7. POINT NO.1:­ A report submitted by PSI, ., who is the
complainant in this case before the Vijayanagar
PS.

The
when
the
contents of the report is as here under:­
On
13/01/2023
at
about
8­40
AM.,
complainant PSI was on patrolling duty, He has
received
credible information from the informer that five persons would
come to Gandhi Maidana, Vijayanagar at about 12 Noon to sell
the contraband, he has made a note in the SHD.

He has
informed the matter to the Higher Officer and obtained
permission to conduct raid.

The complainant along with his
CCH­33
Crl.Misc.No.584/2023
5
staff went to the spot found five persons came to the spot by
an auto, on confirming about the information the said five
persons were surrounded and apprehended. On enquiry, they
have revealed their names and addresses. When the contents
of the bag which was found in the possession of said accused
persons was questioned, they have stated that it is containing
ganja.

The bag containing ganja is seized.

The ganja on
weighing the same found to be 1 Kgs. 400 grams
A detail
report was prepared and submitted before SHO. Basing on the
report, a case in Cr. 3/2023 is registered for the offences
punishable U/s. 20(b), 8(c) of NDPS Act. Thereafter accused
were
arrested
and
produced
before
the
jurisdictional
Magistrate and remanded to judicial custody.

The present
petitioner is accused No.2 in the case.

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 search and seizure not
complied.

They are
the permanent resident of the address
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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 petitioners
have committed heinous offence 1 Kgs, 400 grams of ganja is
seized from the petitioners and other accused.

The offence
punishable with imprisonment upto 10 years and with fine.
There are prima­facie material available against them.
10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
13.1.2023 complainant has conducted raid and apprehended
accused.

On looking to the seizure panchanama the drugs
seized from accused is weighing 1 Kg 400 grams of ganja. 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 this
case the quantum of ganja seized is 1 Kg 400 grams of ganja
CCH­33
Crl.Misc.No.584/2023
7
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
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 1 Kg 400 grams of ganja
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.

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12.

The major portion of investigation in the case is
concluded as the incriminatory article is already seized from
accused.

The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.

His
Further
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
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 petitioners 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.

CCH­33
Crl.Misc.No.584/2023
9
1.

The petitioners 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.

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

3.

They shall
abscond.

4.

They shall
investigation.

5.

They shall not commit similar offence or
any offence while on bail.

6.

They shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties.

7.

They shall appear before the court on all
hearing dates.

8.

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

not
tamper
co­operate
the
with
witness
I.O
or
for
[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 27th January, 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.