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 11 th DAY OF JULY 2022
Crl. Misc.No.6082/2022
Petitioner :
(accused)
Roshan Kumar Mishra, S/o
Amarkumar Mishra, aged about 23
years, Prakash’s Rental House,
Hennanagar Gate Bus Stop, Near
Shankar Kichen Hotel, Hosur Main
Road, Bengaluru
Permanent Address
Piri Village, Babubarathi Thana,
Madhubani District, Bihara State
(By Sri.N.T., Adv.)
V/S.
Respondent :
State by Beguru Police
(By S.P.P )
O R DE R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.143/2022 for the
offences punishable U/Sec.20(B) of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:-
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That the petitioner is very innocent and law abiding
citizens.
He has
offence as alleged.
not committed any offence much less the
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 further that the Bang is not
defined in the NDPS Act. Unless the investigating agency is
able to establish that what the bang contains they cannot
attract penal provisions of Sec.20(b) against the petitioner. As
per the remand application 29 Kgs., of bang of different
companies have been recovered, but the IO., has not disclosed
what the alleged bang contains under the NDPS Act. Without
there being a specification of the content shown in the table of
NDPS Act irrespective of its weight what ever the quantum is
recovered it is nothing to do with the offences shown in the
NDPS Act. The buyer of the bang is not arrested by the police.
The procedure contemplated under N.D.P.S. Act not followed
while recovery. The petitioner is ready and willing to abide by
any conditions imposed by this court in the event of grant of
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3
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 29 Kgs., of bang of different
companies and 400 grams of ganja which is a commercial
quantity. There are sufficient material available against the
petitioner, and 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.
In the event of his release he
may tamper with the prosecution witnesses.
Incriminatory
articles were seized from his custody. 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 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.
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4. Heard learned counsel for the petitioner and the
prosecution.
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 Head Constable of Begur PS., has
submitted a report before the SHO.
The report reads that
when Venkanna Kirasur the Head Constable was discharging
duties at Koodlu gate on 31.5.2022 at 4.30 pm., he has
received credible information through an informant that in the
vacant space, adjacent to Q Grill Bar and Restaurant of
Chikkabegur two persons were selling prohibited contraband
ganja and narcotic tablets.
On that day they have sold the
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said contraband to the public and again on the next day they
may arrive in the said spot around same time.
He has
prepared a report and submitted before SHO and basing on
the said report a case in Cr.No.143/2022 registered against
two unknown persons for the offences punishable U/s.20(B) of
NDPS Act.
PSI Sri Manjunatha Bharathi of Begur Police has
received the information through the Head constable, he has
informed the matter to ACP, Electronic City on 1.6.2022,
obtained permission to conduct raid. He has summoned the
panchas to be present at the time of raid. At about 5.40 pm.,
he has been to the spot along with panchas and staff. There
he has found a person moving suspiciously. He has sent Head
Constable 8855 as Decoy to purchase the article from him.
Decoy who has been to the said person spoken to him and had
proposed to purchase article from him.
He has immediately
signaled to the PSI on confirming about the article in his
possession. Immediately PSI and the staff surrounded the said
person.
On enquiry he has revealed his name as Roshan
Kumar Mishra. He has given his local address, native address
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and other particulars. He is native of Madubani District, Bihar
State. Further he has stated that he came there to sell bang of
Tarang company, Masti Munaka and Power company. He is
also in possession of 400 grams of ganja.
were checked.
The said packets
There were 63 packets of Tarang Company
bang weighing 14 Kgs., 44 packets of Masti Munaka company
bang weighing 10 Kgs., 500 grams and 20 packets weighing 4
Kgs., 500 grams of Power company bang.
In all 29 Kgs., of
bang and 400 grams of ganja. The said articles were seized the
panchanama. He has revealed that he has purchased the said
narcotics from his home town and he is selling to the
customers in Bengaluru. A detail report was prepared. He is
arrested and produced before the court and remanded to
judicial custody.
8. It is argued by the learned counsel for petitioner that
he is
planted in the case by the complainant police.
It is
argued further that the seixed bang is not a ganja and it is not
defined under NDPS Act. He has referred to the order of Delhi
Hon’ble High court in Bail application No.2330/2008 dated
2.7.2010 in the case of Dilip Vs., State. In the said case the
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question arose before the court was whether the percentage of
THC in a sample of Charas can by itself be determinative of the
purity of the sample, whether such test is relevant for
considering the grant of bail.
In the said order the Hon’ble
High Court of Delhi had answered the reference holding that
the percentage of THC in a sample of Charas by itself cannot
be determinative of the purity of the sample. A test resulting
in the quantification of the percentage content of THC is
neither relevant nor necessary for the purposes of considering
the grant of bail or of awarding sentence under the NDPS Act.
I have carefully gone through the order of Hon’ble High Court
of Delhi.
As held in the dictum the percentage of THC in a
sample of charas is not a determinative fact of purity of sample
and the quantification percentage content of THC is not a
criteria to consider the grant of bail. The said dictum with due
respect may not assist the case of petitioner as in the present
case the quantum of narcotics seixed is to the tune of 29 Kgs.
This court has to appreciate the huge quantum of narcotics
seized from the petitioner what made him to keep such a large
quantity of bang in his possession.
It is not the case of
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petitioner that he is not in the possession of bang he has
contended that the bang does not comes under the definition
of Ganja. The contention what ever raised by the petitioner is
a matter to be probed into at the time of trial. At this stage
this court has to appreciate culpable mental state of petitioner
having been in possession of article which causes health
hazards on consumption. Whether it is bang or ganja or what
ever kind of narcotics this court has to appreciate the impact
of the consumption of the said product by the younger
generation. The consumption of narcotics what ever may be
the form would cause serious impact on mental and physical
health. When the bang which is referred in the prosecution
papers does not have any edible quality and it is not
recognized by the Standard Bureau of India as to its edibility,
the claim of petitioner that the bang which is described in the
prosecution papers is not ganja and he cannot be prosecuted
under the NDPS Act could not be entertained.
Learned counsel for petitioner for similar propositions
has referred to the Hon’ble High Court of Punjab and
Harayana in CRM 30633/2014 dated 11.9.2014 Sohan singh
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Crl.Misc.6082/2022
Vs., State of Punjab, Hon’ble High Court of Punjab and
Harayana in CRl.Misc.M266/2018 dated 13.7.2018 Nagir
Singh Vs., State of Punjab, Hon’ble High Court of Punjab and
Harayana in CRM 4347/2021 (O&M) dated 27.7.2021 in
Chaman singh Vs., Union of India, Hon’ble High Court of
Punjab and Harayana in CRM 13518/2021 (O & M) dated
4.8.2021 Irlasamrat Vs., State of Harayana, Hon’ble High
Court of Jammu & Kashmir and Ladakh at Srinagar in Bail
Application No.01/2022 dated 14.3.2022 Mushtaq Ahmad
Bujard Vs.,UT of J & K,
I have carefully gone through the said orders.
At this stage
this court is looking to the huge quantum of narcotics found in
the possession of the petitioner. As per Sec.54 of NDPS Act
lays down a rule of statutory presumption and rule of evidence
which empowers the court to raise a presumption against the
accused that until and unless contrary is proved that the
accused has committed an offence under Chapter IV of the
said Act in respect of possession of any Narcotic Drugs and
Psychotropic Substances, possession of which he fails to
account satisfactorily. If the accused is found to be in
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possession of the narcotic drug, it is for him to account for
such possession satisfactorily otherwise the presumption
under section 54 comes into play.
Here in this case petitioner failed to explain satisfactorily as to
why he is in possession of huge quantum of bang when he was
apprehended by the investigating agency. Therefore, the case
laws referred to by the learned counsel for the petitioner at this
perinvestigation and pretrial stage with due respect may not
be made applicable to the case on hand.
9.
On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 29 Kgs., of bang of different companies and 400
grams of ganja under the seizure panchanama from the
accused which was being carried by him in a bag. On looking
to the seizure panchanama the drugs seized is weighing 29
Kgs., of bang of different companies and 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
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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 bang seized is 29 Kgs., of different
companies and 400 grams of ganja. No doubt, ganja seized is
a small quantity but, the bang which is nowhere defined under
the act is in huge quantity.
10.
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.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:
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“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 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
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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
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 incorrect and has set aside the impugned order.
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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 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
primafacie 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.
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Further in the judgment of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001 (7) SCC
673 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
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
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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
are not guilty and that he is not likely to commit any offence
while on bail.
Here in the present case the petitioner was
apprehended with huge quantum of bang which is deleterious
and on consumption it causes serious mental and physical
health impacts. At this stage, there are primafacie materials
available against the petitioner in regard to the possession of
narcotic drug.
In the result, I proceed to hold that the
petitioner herein has not made out any grounds to entertain
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17
his plea for bail. Accordingly, I answer point No.1 in the
negative.
11. 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 11th day of July 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.