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 17 th DAY OF DECEMBER 2022
Crl. Misc.No.12013/2022
petitioners :
(accused No.2 & 3)
1. Saravana, S/o Gevaram
Aged about 21 years, R/o. 13th Cross,
Balaji Layout, Raghuvanahalli, KKP
Main Road, Bengaluru.
2.Manpul, S/o Azadhiram, a/a 23
years,R/o 13th cross, Balaji layout,
Raguvanahalli, Kanankapura Main
Road, Bengaluru.
(By Smt.Yogeshwari.K.N., Adv.)
V/S.

Respondent :
State by Thalagattapura police,
Bangalore,
(By Public Prosecutor)
O R DE R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.175/2022 (in
2
Spl.CC No.2499/2022) for the offence punishable U/Sec.18(b)
of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:That the petitioners are innocent and law abiding
citizens. 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. The procedure contemplated under N.D.P.S.
Act not followed while recovery. The quantity seized from the
possession of the petitioners is less than commercial quantity.
The opium poppy seized in the case is a raw material and
therefore, the quantum seized in the case has to be considered
as small quantity.

The petitioners are ready and willing to
abide by any conditions imposed by this court in the event of
grant of bail. they is 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 6 Kgs., 500 grams of Opium
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Crl.Misc.12013/2022
Poppy which is a commercial quantity. There are sufficient
material available against the petitioners 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. In the event of their release he
may tamper with the prosecution witnesses.

Incriminatory
articles were seized from his custody. 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 petitioners.
4. Heard learned counsel for the petitioners and the
prosecution.
5. The points that arise for my consideration are as here
under:
1. Whether petitioners has made out
sufficient grounds to enlarge him on
bail?
2. What order?

4
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:- The PI of Thalagattapura PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:On
25.07.2022
at
about
3.00
p.m.,
when
the
complainant was in the station he has received credible
information that three persons are selling opium poppy in a
two wheeler at 100 feet road, Ganigarapalya. On receipt of the
information he has informed to his higher officer and obtained
permission to conduct raid.

The complainant along with his
staff and panchas went to the spot and saw the suspected
persons. He along with staff has apprehended the said
persons.

On enquiry they have revealed their names and
addresses. On search of the bag they found 6 Kgs., 500 grams
of opium poppy. They seized the same. A detail mahazar is
drawn, the accused No 1 to 3 were arrested. A detail report is
prepared submitted before SHO. The said report is the basis
CCH-33
Crl.Misc.12013/2022
5
to
the
register
3
in
Cr.No.175/2022 for the offence punishable U/Sec.18(B)
of
N.D.P.S. Act.

case
against
the
Accused
1
to
Now, the investigation in the case is concluded
and charge sheet is filed. The present petitioners are accused
Nos.2 and 3 in the case.

8.

The learned counsel for petitioners argued that the
investigating agency has not followed proper procedure while
conducting raid. They are innocent and falsely implanted in
the case. They are in no way connected to the crime. In the
event of grant of bail they are ready to offer solvent sureties for
their due appearance before the court.

9. The prosecution contends that 6 Kgs., 500 grams of
opium poppy, seized from the present petitioners and other
accused which is commercial quantity.

The petitioners are
habitual drug peddlers. In the event of their release they may
abscond and may repeat the crime and there is every
possibility of absconding of the petitioners. The offences
alleged are punishable U/s.18(c) of N.D.P.S. Act is punishable
with RI upto 20 years. The petitioners are not entitled for bail.

6
10. On looking to the prosecution papers the quantum
of narcotic substance seized 6 Kgs., 500 grams of opium straw.
On looking to the mahazar particulars and photos the
contraband seized is poppy straw and not opium.

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 at Sl.No.110 the narcotic drug – poppy straw
weighing 1000 grams is small quantity and 50 Kgs., is a
commercial quantity. In the present case poppy straw seized is
weighing 6 Kgs., 500 grams which is intermediate quantity.

11. It is argued by the learned counsel for petitioner that
the contraband seized is opium poppy and as per the
notification dated 19.10.2001 issued under (7)(a) and 13(a) of
Sec.2 of the act specifying small and commercial quantity,
entry 92 would indicate small quantity of opium to be 25
grams and 2.5 Kgs., is commercial quantity.

Opium paste
under entry No.93 – 5 grams is small and 250 grams is
commercial. Opium Husk under entry No.110 – 1000 grams is
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CCH-33
Crl.Misc.12013/2022
small quantity and 50 Kgs., is commercial quantity. He has
referred to the order of Hon’ble High Court in Crl.Petition
No.102124/2019 dated 28.2.2020 Kulvendar Singh Vs., State
of Karnataka by Excise police. In the said case the Hon’ble
High Court by looking to the facts of the case has entertained
the bail plea of the accused. Further it is discussed that the
quantum of contraband opium seized in the said case is
intermediate quantity. I have carefully gone through the order.
Further, in the instant case, poppy straw seized by the
investigating agency is 6 Kgs., 500 grams which is a
intermediate quantity. At this stage, the material available on
record would speak that the quantum of contraband seized
from the conscious possession of petitioners is poppy straw.
The quantum of contraband seized in the case has to be
termed as intermediate quantity of contraband.

As per the
order of Hon’ble High Court in Crl.Petition 7904/2022 dated
5.9.2022 Dedaram Vs., State of Karnataka the Hon’ble High
Court has granted bail to the accused. In the said case the
contraband seized by the investigating agency held to be poppy
straw and not opium. In the case on hand if the mahazar and
8
the photographs scrutinized the contraband seized in the case
is poppy straw and not opium straw.
As per the decision of Hon’ble Apex Court reported in
2018 11 SCC 488 Birbal Prasad Vs., State of Bihar
wherein it is held that:
Ss.37 and 20 – Bail – grant of – non commercial quantity –
quantity involved being only 14 Kgs., of ganja, which is a
non commercial quantity appellant accused not involved in
any other case – in above circumstances, held, appellant
should be released on bail, pending trial – hence, directions
issued to release appellant on bail, on certain conditions.

The said case law aptly applies to the case on hand in holding
that the contraband seized in the case on hand is intermediate
quantity and it is not commercial quantity.

In the said
circumstances, as per the observations of Hon’ble Apex Court
the bail plea of accused to be considered.
11. Here in this case the drugs seized by the investigating
agency to the tune of 6 Kgs., 500 grams of poppy straw which
is an intermediate quantity. When the quantity is less than
commercial quantity, rigors of Sec.37 of the NDPS Act will not
attract, and factors become similar to bail petitions under
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Crl.Misc.12013/2022
regular statues normal, unless the prosecution points towards
exceptional circumstances.
12. Investigation is concluded and charge sheet is filed.
The offence alleged against the petitioners is not punishable
with
death
or imprisonment for life.

Further custodial
interrogation is not warranted. Their voluntary statement is
already recorded.

As per the information provided by the
petitioners they are permanently residing in the address shown
in the cause title. The apprehension of the prosecution that
they 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.

13. Point No.2:- In the result, I proceed to pass following:
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ORDER
The Petition filed by the petitioners U/Sec.439
of Cr.P.C is hereby allowed.
The petitioners is enlarged on bail 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 leave the jurisdiction of this
court without prior permission.

2.

He shall not tamper the witness or abscond.

3.

He shall not commit similar offence or
any offence while on bail.

4.

He shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties.

5.

He shall appear before the court on all
hearing dates.

6.

Breach of any of the conditions by the
petitioner would entail cancellation of bail.

[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 17th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.