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 22nd DAY OF DECEMBER 2022
Crl.Misc.No.12491/2022
Petitioner :
(accused No.1)
Shins Shaji, a/a 26 years, S/o.Shaji
Joseph, R/at No.6, 7th
Cross,Sangliana Layout, Horamavu,
Agara, Bengaluru560067
(By Sri. Ajay Kumar.V..Adv.)
V/S.
Respondent :
State by Mahadevapura Excise
Range 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.44/202023 of
Mahadevapura Excise Range
PS., registered for the offence
punishable U/Sec.8(c), 20(b), (ii)(A) and 22(b) of NDPS Act.
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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. If he is detained in the Central
prison his career will be spoiled in the midst of the other
criminals in the prison. The contraband seized is not
commercial quantity. 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 9.70 grams of Crystal Meth
and 330 grams of Ganja which is a commercial quantity. There
are sufficient material available against the petitioner, and the
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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. The supplier of drug is absconding. He has to be
traced.
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 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?
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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 PSI, of Mahadevapura Excise Range
PS., Bangalore has presented the complaint before the SHO.
The gist of the allegation reads as here under:
On 17.12.2022 at 9.00 hours when the complainant was
in his office he has received credible information that one
person wearing black colour trouser and jacket will come
around 11.00 to 12.00 noon opposite to Super market,
Munekollalu
bus
stop,
Vartur
HAL
Main
road
to
sell
contraband, if he is intercepted the contraband would be
recovered.
Basing on the information the Excise Inspector
along with his team had been to the spot, mounted
surveillance. The suspected person came there, on seeing the
Excise officials he made an attempt to run away from the spot.
At that time he was apprehended. On enquiry he has revealed
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5
his name and address.
suspected
person
is
When the college bag of the said
checked
he
was
carrying
methamphetamine/crystal meth in a plastic box. When it was
weighed it was weighing 9.70 grams. He was also carrying dry
ganja to the tune of 330 grams. A detail mahazar is drawn.
Thereafter, a detail report is prepared by him and submitted to
the SHO. Basing on the said report, a case in Cr.44/202023
is registered against the petitioner and accused No.2 Sagar
U/s.8(c), 20(b)(ii)(A) and 22(b) of NDPS Act.
Basing on the
voluntary statement of accused No.1, the present petitioner
Sachin is apprehended and from the house of petitioner 9.70
grams of Crystal Meth and 330 grams of Ganja was seized. He
is arrested, 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 he is
unaware of seized drug. The seized article is not commercial
quantity. The mandatory provisions of Sec.41, 42, 50, 52 and
47 of the Act are not complied. He is permanent residents of
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the address given in the cause title. In the event of grant of
bail he is ready to abide by the conditions which are being
imposed by this court.
9. It is argued by the prosecution that the petitioner has
committed heinous offence 9.70 grams of Crystal Meth and
330 grams of Ganja
is seized from the petitioner and other
accused. The offence punishable with imprisonment upto 10
years and with fine. There are primafacie material available
against them.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
17.12.2022 complainant has conducted raid and apprehended
accused. On looking to the seizure panchanama the drugs
seized from petitioner herein is weighing 9.70 grams of Crystal
Meth and 330 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 19.10.2001 at Sl.No.55
the narcotic drugganja 1000 grams is small quantity and 20
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Kgs., is commercial quantity.
In this case the quantum of
ganja seized is 330 grams of Ganja which is an intermediate
quantity. Likewise, as per Sl.No.159 methamphetamine, 2
grams is small quantity and 50 grams is commercial quantity.
The quantum of methamphetamine seized from the petitioner
is 9.7 grams which is intermediate quantity. 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.
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11. Here in this case the drugs seized by the investigating
agency to the tune of 9.70 grams of Crystal Meth and 330
grams of Ganja 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 regular statues normal, unless the
prosecution points towards exceptional circumstances.
12. On perusing the investigation papers, investigation
in the case is concluded and charge sheet is filed. The seizure
of contraband from the present petitioner is intermediary in
nature. There is discrepancy in showing the time of arrest of
accused No.3 which is based on the statement of accused
No.1. The year of recording voluntary statement is shown to
be 2020 instead of 2021. the time of arrest of accused No.3 is
shown as 7.00 pm., where as in the remand application the
time of arrest of accused No.3 is shown as 11.00 pm.
The
accused who ran away from the spot is one Sagar, but accused
No.3 one Sachin is arrested by police. All these circumstances
in the case creates doubt of seizure of huge quantum of
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Crl.Misc.No.12491/2022
9
contraband at the instance of accused Nos.1 and 3. that apart
the seizure alleged to have been effected from the present
petitioner is 9.70 grams of Crystal Meth and 330 grams of
Ganja.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.
His
Further
Voluntary
statement is already recorded. As per the information provided
by the petitioner he is permanently residing in the address
shown in the cause title. The apprehension of the prosecution
that he 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:
ORDER
The Petition filed by the petitioner U/Sec.439 of
Cr.P.C is hereby allowed.
The petitioner 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.
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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
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 22nd day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*