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 3rd DAY OF DECEMBER 2022
Crl.Misc.No.11418/2022
Petitioner :
(accused No.3)
Renukanandan. A
S/o late V. Amaranayanaswamy
Aged about 29 years
# 56, Sampanna Road,
Near Kullappa Circle,
Akkayamma Layout, Maruthi
Sevanagar,
Bangalore North,
Bengaluru – 560 33.
(By Sri R.V.A., Adv.)
V/S.
Respondent :
State by Cubbon Park PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.438 of Cr.P.C., is filed by the
petitioner to enlarge him on bail in the event of his arrest in
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Cr.No.104/2022 of Cubbon Park PS., registered for the
offences punishable U/Sec. 22(C) 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.
Complainant has shown this petitioner as accused No.3 in the
aforesaid crime.
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.
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3. The objection raised by the prosecution is that the
investigating agency has in all seized 10 grams of MDMA from
the possession of the accused No.1. The present petitioner has
supplied the contraband to accused No.1. A detailed mahazar
is drawn in the spot after apprehending accused No.1 and
seizure of 10 grams of MDMA from accused No.1.
The offence
alleged against the petitioner is punishable with rigorous
imprisonment for a term which shall extend upto 10 years.
There is a prima facie case available against the petitioner. He
is an habitual drug dealer.
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
anticipatory bail?
2. What order?
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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 WPSI., who is the
complainant in this case before the Cubbon Park PS.
The
contents of the report is here under:
On 13.10.2022 at about 2.00 pm., when the complainant
was on patrolling duty she has received credible information
that at Siddlingaiah Circle, Cubbon park Central Library road
one person who is going in his two wheeler is selling MDMA
contraband to the public and if the complainant PSI visits the
spot he would be apprehended. The complainant on receipt of
information, informed the matter to the higher officer, obtained
permission to conduct raid. She along with panchas and staff
had been to the spot and mounted surveillance. One person
was standing there. He was apprehended and enquired. He
has stated that his name is Sherwin M S. On enquiry he has
stated
that
he
has
purchased
MDMA
from
one
Deva
5
Ashirvadam and Renukanandan (accused No.3) of Bengaluru.
He has given their full address. She has also called gazetted
officer to the spot to conduct personal search of accused. On
conducting the search of accused No.1 10 grams of MDMA
was recovered.
He was arrested.
Contraband was seized
under the mahazar. As per the say of accused No.1, accused
No.2 was arrested on 26.10.2022. At his instance 3 grams of
MDMA was seized. He was arrested, produced before the court
and remanded to judicial custody. On arrest of accused No.1
case is registered in Cr.No.104/2022 against accused Nos.1 to
3 for the offences punishable U/s.22(c)
of NDPS Act.
The
present petitioner is arrayed as accused No.2 in this case. In
the complaint present petitioner is shown as accused No.3 and
he is shown to be absconding.
According to complaint
allegations present petitioner is the supplier of ganja.
8.
The petitioner contends that he has been falsely
implanted in the case.
The quantum of MDMA seized from
accused No.1 is 10 grams, 3 grams from accused No.2 on
different dates. It is contended by the learned counsel for the
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petitioner that basing on the statement of accused No.1 & 2,
the investigating agency is trying to apprehend the present
petitioner.
From accused Nos.1 & 2 contraband is already
seized. The present petitioner is in no way way connected to
the crime.
this
court
The accused No.2 is already enlarged on bail by
in
14.11.2022.
Crl.Msic.
10747/2022
vide
order
dated
The petitioner herein is a Mechanical Engineer
working in a private firm and he is the sole bread earner in the
family. He has to take care of his family. His father died on
27.10.2022 due to heart attack.
entire family.
He has to take care of the
He has produced the death certificate and
hospital report of his father. In the event of grant of bail he is
ready to offer solvent surety.
9. The prosecution contends that petitioner herein is a
habitual offender. The offence alleged against the petitioner is
punishable U/Sec.22(C) of N.D.P.S. Act which is punishable
with imprisonment upto 10 years and fine. There are sufficient
materials available against the petitioner attracting 22(C) of the
7
Act.
In the event of grant of bail he would abscond and
hamper the investigation.
10.
On collective scrutiny of the rival contentions, the
Investigating Agency has seized 10 grams of MDMA from
accused No.1 on 13.10.2022. As per the say of accused No.1,
accused No.2 has been apprehended on 27.10.2022. 3 grams
of MDMA is seized from accused No.2.
After nine days of
arrest of accused No.1, accused No.2 is arrested.
Accused
No.2 has already been granted bail by this court.
quantum
of
intermediary.
contraband
seized
from
accused
No.2
The
is
In the report of complainant PSI, it is alleged
that A1 has procured MDMA from accused Nos.2 and 3, from
the conscious possession of accused No.1, 10 grams of MDMA
is seized. The present petitioner apprehends threat of arrest in
the hands of complainant police as accused No.1 has stated
before the IO that he has purchased contraband from accused
No.2 and the present petitioner.
Further the narcotic
substance seized is 10 grams of MDMA from accused No.1 on
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13.10.2022 and 3 grams of MDMA seized from A2 on
27.10.2022. The seizures were made on different dates. As
per notification 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 drugMDMA 0.5 grams is
small quantity and 10 grams is commercial quantity. In this
case the quantum of MDMA seized is 10 grams, and 3 grams
on different dates and each seizure has to be taken separately.
In the present case 10 grams of MDMA narcotic
substance is seized from A1 on 14.10.2022 and 3 grams is
seized from A2 on 27.10.2022 has to be taken separately. As
per the Notification 10 grams of MDMA is commercial quantity.
As per sec.2(viia) commercial quantity in regard to narcotic
drugs and psychotropic substances means any quantity
greater than the quantity specified by the central govt., by
notification in the official gazetteer.
In this case as per the
table referred above, 10 grams of MDMA is a commercial
quantity, if we look into section 2(viia) any quantity greater
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than the quantity specified in the central govt., notification
should have to be treated as commercial quantity. In view of
sec.2(viia) the 10 grams of MDMA which is seized in the
present case could not be termed as commercial quantity. That
apart, the learned counsel for the petitioner referred to the
unreported decision of Hon’ble High Court in Crl.Petition
No.849/2013 dt.21.3.2013 wherein it is discussed as here
under:
“2. The Notification issued under the NDPS Act, in item
No.133 defines the small quantity as “0.002” and
commercial quantity as “0.1 gram”. The LSD paper found
with the petitioner is not a commercial quantity. the MDMA
powder found with the petitioner falls under item No.138 of
the Notification.
10 grams is shown to be commercial
quantity but the definition of commercial quantity under
Sec.2(viia) declares that any quantity grater than the
quantity
specified
by
the
Central
government
by
Notification is the official Gazette.
3.
In view of the definition, it has to be held that
possession of MDMA powder of 10 grams cannot be
considered as commercial quantity.
in that view of the
matter, Section 37 of the NDPS Act would not apply.
Accordingly, petition is allowed.”
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Further in the decision reported in 2015 SCC online Ori
361 in Anil Kumar Das Vs., State of Orissa wherein it is
observed:
Even though in column No.6 the table under the heading of
commercial quantity, 20 Kg., has been mentioned but in
view of clause (viia) of Section 2 of the NDPS Act, 20 Kg., of
ganja will not come within the definition of “commercial
quantity”. commercial quantity in respect of ganja is to be
greater than the quantity specified in the aforesaid
notification
which
would
mean
any
quantity
more
than/bigger than/larger than 20 kg.
On looking to the aforesaid judgment of Hon’ble High
Courts and on looking to Sec.2(viia) of NDPS Act where the
commercial quantity has been described as the narcotic
substance which is greater than the quantity specified by the
notification of central govt., in the official gazette the NDPS
substance seized in the present case that is 10 grams of
MDMA from A1 could not be termed as commercial quantity.
11. As per the say of accused No.1, the name of present
petitioner has been shown in the complaint and FIR. At this
stage, investigating agency has not placed any material before
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this court to show that the present petitioner herein has an
active role in the crime.
previous
criminal
The petitioner herein is not having
antecedents.
The
major
portion
of
investigation in the case is concluded as the incriminatory
article is already seized.
The offence alleged against the
petitioner is not punishable with death or imprisonment for
life. Custodial interrogation is not warranted. 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.
12. Point No.2:
In the result, I proceed to pass
following:
ORDER
The Petition filed by the petitioner U/Sec.438
of Cr.P.C is hereby allowed.
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The respondent police is directed to release the
petitioner on bail in the event of his arrest in
Cr.No.104/2022 of Cubbon Park Police Station for
the offences punishable U/s.20(C) of NDPS Act, on
executing personal bond for a sum of Rs.1,00,000/
with two sureties for the like sum with following
conditions:
1)
He shall not directly or indirectly make any
inducement, threat or promise to any person
acquainted with facts of the case, so as to
dissuade him from disclosing such facts to
the Court or to any police officer.
2)
He shall mark his attendance before the
concerned IO on every first Sunday of the
month between 10.00 am., to 5.00 pm., till
filing of the charge sheet or further orders
which ever is earlier.
3)
He shall attend before the Court on all dates
of hearing without fail and shall not leave the
jurisdiction of this court till the conclusion of
trial without prior permission of this court.
4)
He shall not threaten or try to tamper with
the prosecution witnesses in any manner.
5)
He shall not commit similar offence or
any offence while on bail.
6)
He shall furnish his photo ID proof and photo
identity proof of their surety.
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7)
Breach of any of the conditions by the
petitioner would entail cancellation of bail.
[Dictated to the Judgment Writer, directly on the computer, typed and
computerised by him, corrected, signed and then pronounced by me in
Open Court on this the 3rd day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
SK/*