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 15th DAY OF DECEMBER 2022
Crl. Misc.No.11678/2022
Petitioner :
(accused No.2)
Ravi Kumar, S/o.Selvakumar,
a/a 22 years, R/at No.15 8, 2nd
Block, B.Shop, KGF.
(By Sri.Madhu.R Adv.)
V/S.
Respondent :
State by Ashok Nagar Police
(By Public Prosecutor)
ORDER
This is the successive bail petition U/Sec.439 of Cr.P.C.,
filed by the petitioner to enlarge him on bail, in Crime
No.307/2022 of Ashok Nagar 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. It is contended that the quantum of MDMA
alleged to have been seized from the petitioner is 4 grams.
Which is not a commercial quantity. The petitioner herein is
resident of KGF and his father is blind.
driving for his livelihood.
He is engaged in
On 27.10.2022 one of his cousin
brother told that petitioner that one of his friend from
Bangalore is coming to KGF and requested to give shelter for
that particular day. Being a cousin brother he was requested
to give shelter to his cousin’s brother friend. Around 1.00 am.,
in the mid night. Some one knocked at the door of the house
of the petitioner.
They are from Ashoknagar police station.
They searched his house and took accused No.1 to custody
and forced the petitioner to accompany them. He was detained
illegally in the police custody and therefore, false case has
3
been foisted.
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Crl.Misc.11678/2022
The petitioner has never consumed any drugs
and is not having any knowledge of MDMA contraband. His
name is not shown in the FIR nor in the complaint.
The
procedure contemplated under N.D.P.S. Act not followed while
recovery. 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 15 Grams of MDMA seized is
a commercial quantity. 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.
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
4
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:
REASONS
7. POINT NO.1: The PSI of Ashok Nagara PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:
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Crl.Misc.11678/2022
On 30.10.2022 at 2.00 PM when the complainant PSI
was discharging duties in the station he has received credible
information
that
two
unknown
persons
were
illegally
transporting and selling the contraband to the customers in
small plastic covers near water tank mud ground, Austin
Town. The complainant on receipt of the information informed
the matter to ACP, Cubbon Park, obtained permission to
conduct raid. He has registered a case in Cr.No.307/2022 for
the offences punishable U/Section 8(c), 22(c) of N.D.P.S. Act.
Thereafter, he along with panchas and team and investigation
tools been to the spot around 2.50 pm., and mounted
surveillance and found two persons moving suspiciously
carrying plastic covers and they were also carrying small
packets containing white powder. They were surrounded and
apprehended. On enquiry they have revealed their names as
Symon Gabriel and Ravikumar. Symon Gabriel is the resident
of Anepalya, Bangalore.
Kolar.
Ravikumar is the resident of KGF,
On enquiry they have revealed that they are in
possession of MDMA crystal. They were appraised about their
right to have personal search through a gazetted officer, they
6
have consented to have their personal search through a
gazetted officer. On further enquiry they have stated that they
have procured MDMA crystals from one Shafiq @ Sikkuda of
TC Palya , KR Puram and they have purchased it for a sum of
Rs.20,000/ and they are searching of the customers. ACP of
Cubbonpark was called to the spot. Their personal search is
conducted. During personal search accused No.1 – 11 grams
of MDMA is seized. During personal search of accused No.2
4 grams of MDMA is seized.
A detail panchanama was
prepared in the spot. Accused Nos.1 and 2 were arrested and
produced before jurisdictional Magistrate and were remanded
to judicial custody. The present petitioner is accused No.2 in
the case.
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
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7
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 15
grams of MDMA under the
seizure panchanama from the custody of accused Nos.1 and
present
petitioner.
commercial
quantity
As
of
per
specification
narcotic
drug
of
or
small
and
psychotropic
substance issued by Ministry of Finance Department of
Revenue Notification S.O.1055(E) dated 19.10.2001 at at
Sl.No.134 the narcotic drug – MDMA weighing 10 grams is a
commercial quantity. In the present case 15 grams of MDMA
8
seized is commercial quantity. It is the contention of learned
counsel for petitioner herein that petitioner is no way
connected to the crime. He has given shelter to the accused
No.1 who is his cousin’s friend at his house in KGF.
Ashoknagar police in the midnight came to his house and
conducted search of his house, apprehended accused
No.1
and seized contraband from him. He was taken illegally to the
police station by the police, detained and thereafter, foisted in
a false case. Moreover, alleged seizure of contraband shown
from the present petitioner is 4 grams which is only an
intermediate quantity.
Therefore, his bail plea has to be
entertained.
11. Herein in the instant case, the police according to
their case have apprehended accused Nos.1 and 2 at Austin
Town, Water tank, Bangalore on 30.10.2022 at 2.50 pm. It is
alleged in the investigation papers that accused Nos.1 and 2
were selling contraband to the public in small plastic packets
and they were in possession of MDMA.
During personal
search of accused No.1 investigating agency seized 11 grams
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of MDMA
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Crl.Misc.11678/2022
and during personal search of accused
grams of MDMA
seized.
No.2 4
The said seizure is effected in the
place of incident and when the accused
Nos.,1 and 2 were
together. The allegation against them is they were selling the
contraband together to the public in Austin town.
The
contention of learned counsel for petitioner that the petitioner
is arrested from his house at KGF is without any material.
Furthermore, when the seizure is effected in the place of
incident from the custody of accused Nos.1 and 2 together
this court has to take into consideration joint seizure of
contraband from the possession of accused No.1 and 2. this
court cannot segregate the seizure of contraband from accused
nos.1 and 2. the total seizure of contraband is to the tune of
15 grams has to be assessed and the allegations leveled
against the accused
that they were doing the sale of
contraband together has to be appreciated.
Therefore, the
contention of petitioner that he is found only in possession of 4
grams of MDMA which is intermediate in quantity and his bail
plea has to be considered could not be entertained.
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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) 15 SCC 15 2 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 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 :
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Crl.Misc.11678/2022
“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 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.
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:
12
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 drug
trafficking 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 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
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Crl.Misc.11678/2022
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 held to be 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:
14
“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
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 afore said 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, 15 grams of MDMA seized from the
conscious possession of the accused
No.1 and
petitioner
herein. The seizure of contraband is made when the accused
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Crl.Misc.11678/2022
No.1 and 2 were together as per the investigation report.
At
this stage, there is primafacie material available against the
petitioner that he is in possession of contraband along with
accused No.1 and is doing the sale of contraband. The learned
counsel for petitioner has failed to place any material before
this court that he was not doing the trade of contraband at the
time of his apprehension and search.
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.
15 . 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 15th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.