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.11744/2022
Petitioner :
(accused No.1)
Sameer Pasha, S/o.Iliyaz Pasha, 21
years, R/at.25, 4th cross, Pipeline
road, Shamanna Garden, Mysore
Road, Bangalore.
(By Sri.Sateesh.T Adv.)
V/S.
Respondent :
State by Byatarayanapura PS
(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.161/2022 of
Byatarayanapura PS, registered for the offences punishable
U/Sec.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. The procedure contemplated under N.D.P.S.
Act not followed while recovery. It is contended that his mother
is not well.
The hospital prescription and the report is
produced. It is urged that petitioner may be enlarged on bail
to take care of his mother Ayusha who is not well. The
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 12 grams of MDMA which is
a commercial quantity. There are sufficient material available
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Crl.Misc.11744/2022
3
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.
4. Heard learned counsel for the petitioner and the
prosecution.
5. The points that arise for my consideration are as here
under:
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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 Byatarayanapura PS., has
put the criminal law into motion.
The gist of the allegation
reads as here under:
On 27.6.2022 at about 1.00 pm., when the complainant
was in the police station., he has received a credible
information that near Kimko Junction, Nice Road, Mysore road
a person is selling MDMA illegally to the public. On receiving
the information he has intimated the information to his higher
officer and obtained permission to conduct raid. He went to
the spot and apprehended the accused. On enquiry he has
revealed his name and address.
On personal search of the
accused he has seized 12 grams of MDMA and a detail
mahazar was drawn in the spot. Accused was arrested and a
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5
report is submitted before Station House Officer which is the
basis to register the case against the accused in Crime
No.161/2022 for the offence punishable under Sec.22(c) of
NDPS Act.
8. It is vehemently argued by the learned counsel for the
petitioner that petitioner is falsely implicated in the above case.
The quantity seized from the possession of the accused is less
than commercial quantity. 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 the drugs were seized from his
custody. There are primafacie material available against him.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency
seized
12
grams
of
MDMA
under
the
seizure
panchanama. As per specification of small and commercial
quantity of narcotic drug or psychotropic substance issued by
6
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 12 grams of MDMA which is a commercial
quantity. The petitioner herein is found in possession of
contraband. It is argued by the learned counsel for petitioner
that the mother of the petitioner is not well and the hospital
report is produced. Petitioner may be granted bail to take care
of his mother. I have gone through the medical report of the
mother of the petitioner. The mother of the petitioner is aged
45 years. She is having pain in the neck and sinus problem.
She
is
diagnosed
with
cervical
spondylosis.
Cervical
spondylosis is not a serious ailment for that suitable
medication and exercise is required.
There is no serious
ailment as per the report of medical officer. The presence of
the petitioner is not required to take care of his mother who is
aged 45 years. The investigation in the case is pending. The
seizure of contraband is commercial quantity of MDMA.
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11.
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Crl.Misc.11744/2022
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
“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
8
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
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.”
11. 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
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Crl.Misc.11744/2022
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 co
accused.
By making a detail observation in granting the bail to the
accused is 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.
10
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 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 the 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).
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Crl.Misc.11744/2022
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
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
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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, in all 12 grams of MDMA seized
from the petitioner herein. At this stage, there is primafacie
material available against the petitioner in regard to the
possession of narcotic drug. The learned counsel for petitioner
has failed to place any material before this court that he was
not in possession of NDPS article at the time of his
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Crl.Misc.11744/2022
apprehension and search. The petitioner herein has failed to
made out that his mother is suffering from any serious ailment
and his presence is required to take care. There is no serious
ailment and she is aged 45 years. 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.
12. 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.