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 27 th DAY OF JULY 2022 Crl.Misc.No.7017/2022 Petitioner : Selvaraju S/o Gunashekaran, (accused No.1) Aged about 32 years, R/at. No.10 B Big Streets, Nayakanapet, Kanchipuram District, Tamil Nadu. (By Sri MN Adv.) V/S. Respondent : State by Kalasipalya Police Station, Bangalore (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioner to enlarge him on bail in Cr.No.100/2022 of Kalasipalya PS., for the offence punishable U/Sec.20(b) (ii)(C) of N.D.P.S. 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 been falsely implicated by the respondent in this case. Though the alleged offences are non bailable, but is neither punishable with imprisonment for life or death sentence. The procedure contemplated under N.D.P.S. Act is not followed while recovery. There is no restriction U/Sec.37 of N.D.P.S. Act for grant of bail. petitioner is permanent residents 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 20 Kgs 575 grams of ganja. The offences alleged against the petitioner is punishable with rigorous imprisonment for a term upto 20 years and shall also be liable to fine. There is a primafacie case available against the petitioner. He is habitual drug dealer. There is primafacie case made out against petitioner. If petitioner is released on CCH-33 3 Crl.Misc.6671/2022 bail, he will continue the profession of narcotic drug selling, and he may abscond and tamper evidence of the prosecution. 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 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 complainant police have prosecuted

the petitioner in crime No.100/2022 for the offence punishable U/s.20(b) (ii)(c) of NDPS Act. On 27.6.2022 at about 9.05 am., when the complainant was in Station, he has received a credible information that at Patnool Town, F Street, in front of Tippu Armoury below a Peepal Tree, one person is selling ganja to the public. He has informed the matter to his higher officer, obtained permission, he along with panchas and staff and investigation tools went to the spot around 9.35 a.m., On mounting surveillance in the spot, he has seen the person moving suspiciously. The said person was apprehended and on enquiry he has revealed his name and address. He is the resident of Tamil Nadu. He is carrying ganja in plastic packets. In the presence of gazetted officer, personal search is conducted. During search of the bag, in all 20 Kgs., 575 grams of ganja was found. The said ganja was seized under detail mahazar. Thereafter, he has prepared a detail report and submitted before the SHO, which is the basis to register the case against the accused in CCH-33 5 Crl.Misc.6671/2022 Cr.No.100/2022 for the offence punishable U/s.20(b), (ii) (c) of NDPS Act. Accused was arrested and produced before the learned Magistrate. He was 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 he is unaware of seized drug. The seized articles are not commercial quantity. Therefore, NDPS Act is not applicable.

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 20 Kgs 575 grams of ganja from accused under the seizure panchanama. The present petitioner is arrested on 27.6.2022. 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.55 the narcotic drug­ ganja 1000 grams is small quantity and 20 Kgs 575 grams is commercial quantity.

11. 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 CCH-33 7 Crl.Misc.6671/2022 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 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. 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 CCH-33 9 Crl.Misc.6671/2022 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 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 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 and 20 Kgs., 575 grams of ganja was seized from him. The quantity of the contraband is commercial quantity. 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 CCH-33 11 Crl.Misc.6671/2022 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 Judgment Writer, 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 July 2022 B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.