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 19th DAY OF JANUARY 2023
Crl. Misc.No.157/2023
Petitioner :
(accused.4 & 5)
Rayan Khan,
S/o.Late Mazar Khan,
Aged about 19 years,
Sadiya Khanum,
Wife of Late Mazar Khan,
Aged about 35 years,
(By Sri Md.Wazeer, Adv.)
V/S.
Respondent :
State by D.J. Halli Police
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.412/202 of
D.J.Halli PS., registered for the offences punishable U/Sec.
8(c), 20(b)(ii)(b), of N.D.P.S. Act.
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2. The prevalent grounds urged seeking bail:
That the petitioners are very innocent and law abiding
citizen. They have not committed any offence much less the
offence as alleged.
They have 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. There is no connection or active part played
by these petitioners.
The procedure contemplated under
N.D.P.S. Act not followed while recovery. The petitioners are
ready and willing to abide by any conditions imposed by this
court in the event of grant of bail. They are ready to offer
surety for their 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 4 Kg 500 grams Charas and
27
grams MDMA from the accused persons.
The ganja oil
seized is a commercial quantity. There are sufficient materials
available against the petitioners and the said offences are
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Crl.Misc.157/2023
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. In the
event of his release he may tamper with the prosecution
witnesses.
custody.
Incriminatory articles were seized from their
They may involve himself in similar offences.
Investigating agency by complying the provisions prevailed
under the act has seized the contraband from the petitioners.
The petitioners 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 petitioners have made out
sufficient grounds to enlarge them on
bail?
2. What order?
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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 D J halli PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On 29.11.2022 when the complainant was in the station
he has received credible information from the informant that
an unknown person is selling charas to the public at LR Bande
L R Bande main Road,D J halli police limits
ground. The informant has told
near a play
the complainant that if the
complainant accompanies him he would show the suspect to
the complainant. He has informed the matter to the superior
officer and obtained permission to conduct raid and he along
with panchas and staff went to the spot. The suspect was
found in the spot, the informant has shown the suspect to the
complainant.
He
was
immediately
surrounded
and
apprehended. On enquiry he has revealed his name as
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Mohameed Sufiyan Hussain resident of D.J.Halli, Bengaluru.
On further enquiry, he has stated that he is there in the spot
to sell contraband to the public. He has purchased contraband
from one Akash of Nepal and he is selling the same to the
students and software employees by packing in a chocolate
covers. He was appraised of his right to have personal search
through a Gazetted officer. He has stated that he is not
possessing any contraband in his cloths and does not require
any personal search.
In the bag which was found with the
accused there was charas weighing 4kg 500 gms which was
kept in Merlin Company chocolate cover and Popito company
lolly pop chocolate box and cadbury dairy milk chocolate cover.
Incriminating substances were seized under detail
mahazar. The accused No.1 was arrested and a detail report
is submitted. Basing on the report, a case in Cr.412/2022 is
registered for the offence punishable U/s. 8(c), 20(b)(ii)(b), of
N.D.P.S. Act.
Accused No.1 in his voluntary statement has revealed
that he has purchased contraband from one Akash of Nepal.
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He is doing the trade of contraband along with accused No.2
Suhail @ Papai. Basing on his statement accused NO.2 is
arrested. During voluntary statement of A2 he has stated that
he is doing drug trafficking along with the son of A1 i.e.,
Rayan Khan. The mother of Rayan Khan is also involved in
drug trafficking i.e., accused No.5 in the case. At the instance
of accused No.4 and 5 12 gms of MDMA seized from their
house. 15 gms of MDMA is seized from the lodge where
accsued No.1 and 4 were staying. Accused No.4 and 5 are the
petioners in this case. At their instance 27 gms of MDMA is
seized. Initially, from A1 4 kgs 500 gms of charas seized. The
accused No.1, 2, 4 and 5 were arrested and they were
produced before the Court and were remanded to J.C. The
present petitioners are accused NO.4 and 5 in the case.
9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were seized from
their custody. There are primafacie material available against
them.
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10.
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Crl.Misc.157/2023
On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized4 Kg 500 grams Charas and 27 grams MDMA
under the seizure panchanama. 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 Sl.No.134
the narcotic drug MDMA weighing 10 grams is a commercial
quantity. In the present case 27 grams of MDMA narcotic
substance is seized which is a commercial quantity. As per
serial No.23 the narcotic drug – Charas weighing 100 grams is
small quantity and 1 kg is commercial quantity. In the present
case 27 grams of MDMA narcotic substance is seized, 4 kgs
500 gms of charas is seized which is a commercial quantity.
The contention of petitioners is that petitioners are in judicial
custody since the date of their arrest, their custodial detention
is not warranted.
They may be enlarged on bail.
The said
contention of the petitioners could not be entertained as the
petitioners are apprehended with commercial quantity of
contraband.
Under Sub clause (ii) of clause (b) of 37(1)
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negation of bail is the rule and its grant is an exception. For
granting the bail the court must on the basis of the record
produced before it, be satisfied that the petitioner is not guilty
of the offences with which he is charged and further that they
are not likely to commit any offence while on bail. Here in this
case there is primafacie material collected by the investigating
agency against the petitioners in regard to the conscious
possession of and commercial quantity of contraband.
12.
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.104134/2021 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
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9
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
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
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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.
12. 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.
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(i)
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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 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 recent
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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 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 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
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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 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
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
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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
are not guilty and that they are not likely to commit any
offence while on bail. Here in the present case the petitioners
along with other accused were apprehended and 4 Kg 500
grams Charas and 27 grams MDMA seized. The quantity of
contraband is commercial quantity. At this stage, there is
primafacie material available against the petitioners in regard
to the possession of narcotic drug.
The learned counsel for
petitioner has failed to place any material before this court that
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they were not in possession of NDPS article at the time of their
apprehension and search. In the result, I proceed to hold that
the petitioners herein has not made out any grounds to
entertain their plea for bail. Accordingly, I answer point No.1 in
the negative.
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 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 19th day of JANUARY 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.