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 27th DAY OF JANUARY 2023
Crl. Misc.No.245/2023
Petitioner :
(accused No. 1)
Syed Yarab @ Yarab,
S/o.Syed Mahaboob,
Aged about 24 years,
R/at No.124, 10th Cross,
Padarayanapura,
Bangalore­560 026.
(By Sri.Abdulsab C.B. Adv.)
V/S.

Respondent :
State by J.J Nagar 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.2/2023 of J.J.Nagar PS.,
registered for the offences punishable U/Sec. 8(c), 20(ii), (B), 22(B)
(c) 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 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. There is no connection
or active part played by this petitioner. The procedure contemplated
under N.D.P.S. Act not followed while recovery. Petitioner is
permanent resident of the address stated 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 25 Grams of MDMA Crystal, 0.35 Gram LSD
Strips from the accused persons. The MDMA seized is a commercial
quantity. There are sufficient materials 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
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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:
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 Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:­ The PI, JJ Nagar PS., Bangalore has put the
criminal law into motion. The gist of the allegation reads as here
under:­
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On 02.01.2023 , when the complainant was in the police
station has received credible information that at near Edga Ground,
Old Guddadahalli, Bengaluru three persons are selling the Ganja,
MDMA Crystal , LSD Strips to the students and the persons who are
coming to play in the ground. After receipt of the information he
has informed to his superior and obtained permission to conduct
raid. He along with the panchas and staff had been to the spot at
4.00 p.m., the suspected were there in the spot.

They were
surrounded and apprehended, on enquiry, they have revealed their
names and addresses. During personal search as well as search of
bag of accused Nos. 1 to 3, 25 Grams of MDMA Crystal, 0.35 Gram
LSD Strips were found and seized under mahazar.
taken for forensic examination.

Sample was
A detailed report is submitted to
JJB Nagar PS which is the basis to register the case against the
accused Nos. 1 to 3 in Cr.No.2/2023 of JB Nagar PS., registered for
the offences punishable U/Sec.8(c), 20(ii), (B), 22(B) (c) of N.D.P.S.
Act. After arrest of accused Nos. 1 to 3, during voluntary statement
they have revealed that accused No.4 Imran Khan @ Biryani has
supplied contraband to them. Basing on the voluntary statement,
he was arrested on 5.1.2023 and produced him before the Court.

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8.

It is vehemently argued by the learned counsel for the
petitioner that petitioner he is falsely implicated in the said 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 25 Grams of MDMA Crystal, 0.35 Gram LSD Strips seized
from accused No.1 to 3 on 2.1.2023. 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 19
grams of MDMA narcotic substance is seized which is a commercial
quantity. As per Sl.No.133, 0.002 grams of LSD is small quantity,
0.1 gram is commercial quantity. In the present case 25 Grams of
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MDMA Crystal, 0.35 Gram LSD Strips narcotic substance is seized
from accused Nos. 1 to 3 which is a commercial quantity.

The
seizure is effected from the accused no.1 to 3. The quantum of
contraband seized in the case is
commercial quantity of
contraband.The petitioner herein is accused No.1. The investigating
agency apprehended A­1 along with 2 and 3 and seized commerical
quantity of contraband.

11.

The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. In 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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2. 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
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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.

3. 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.
Hon’ble Apex Court
Further, at Para­30 the
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 co­
accused;
(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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12.

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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.
13. 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 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
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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
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
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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
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. Here in the present case the petitioner herein
along with A­2 and A­3 was apprehended and 25 grams of
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MDMA and 0.35 grams of LSD strips were seized. The quantity
of contraband is commercial quantity. 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
apprehension and search.

In the result, I proceed to hold that
the petitioner herein has not made out any grounds to
entertain their plea for bail. Accordingly, I answer point No.1 in
the negative.
14. 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 27th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.