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 2 6 th DAY OF SEPTEMBER 2022 Crl.Misc.No.9234/2022 Petitioner : Shivaprasad, S/o.Sri.Kailas, (accused) a/a 24 years, R/at Matharani Gents Paying Guest, 3rd Cross, PR Layout, Munnekolalu, Marathhalli, Bengaluru. (By Sri L.D., Adv.) V/S. Respondent : State by Marathahalli PS Bengaluru (By Public Prosecutor) O R D E R The present petition is filed by the petitioner U/s.439 of Cr.P.C., to enlarge him on bail, in Cr.No.222/2022 of Marathahalli PS., registered for the offence punishable U/Sec.8(c), 20(B) of NDPS 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 no knowledge of alleged crime and falsely implanted at the instance of extraneous elements. The mandatory provisions U/s.8(c), 20(B) of NDPS Act has not been complied. There are no eye witnesses who speak about the sale of alleged contraband. Though the alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. 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. He has no bad antecedents. He is the sole bread earner of his family. Hence, sought to grant bail.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 1 Kg 100 Grams of Ganja from the possession of the accused. The accused is found to be in possession of narcotic substance. A detailed mahazar is drawn in the spot. Personal search is conducted. The offence alleged against the petitioner is punishable with rigorous imprisonment for a term which shall extend upto 10 years. There is a primafacie case available against the petitioner. He is an habitual drug dealer. In the event of CCH-33 Crl.Misc.No.9234/2022 grant of bail, he would abscond and may hamper the investigation. 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:- A report submitted by PSI, ., who is
the complainant in this case before the Marathahalli PS. The contents of the report is as here under:- On 11/09/2022 the complainant PSI., has registered a suo moto complaint in Cr.222/2022 for the offence punishable U/s.8(c), 20(B) of NDPS Act. Based on credible information that within the jurisdiction of police station at Marathahallli Outer Ring Road, Near Le Arabia Hotel, on the foot path, Munnekolala some person is selling the narcotic substance. He has informed the matter to PI., superior officer and obtained permission to conduct raid. He along with panchas and staff had been to the spot at 15.30 hours and apprehended one person. On enquiry he has revealed his name and address and that he had bought ganja and selling the same to the public. The ganja which was in the possession of accused was seized under a mahazar. On weighting the ganja it was found to be 1 Kg., 100 grams. Thereafter, a detail seizure panchanama was drawn. A detail report was prepared and submitted before the SHO. Thereafter accused was arrested and produced before jurisdictional Magistrate 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 CCH-33 Crl.Misc.No.9234/2022 permanent residents of 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 1 Kg. 100 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 11.9.2022 complainant has conducted raid and apprehended accused. On looking to the seizure panchanama the drugs seized from accused is weighing 1 Kg 100 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 Kgs., is commercial quantity. In this case the quantum of ganja seized is 1 Kg 100 Grams of Ganja is an 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.
11. Here in this case the drugs seized by the
investigating agency to the tune of 1 Kg 100 Grams of Ganja which is an intermediate quantity. When the quantity is less than commercial quantity, rigors of Sec.8(c), 20(B) 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. The major portion of investigation in the case is
concluded as the incriminatory article is already seized from CCH-33 Crl.Misc.No.9234/2022 accused. The offence alleged against the petitioner is not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. His 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.
1. The petitioner shall give attendance before the concerned I.O., once in a month i.e., preferably on first Monday of every month in between 10.00 am., to 2.00 pm., till filing of charge sheet or further orders whichever is earlier.
2. He shall not leave the jurisdiction of this
court without prior permission.
3. He shall not tamper the witness or abscond.
4. He shall co-operate with I.O for investigation.
5. He shall not commit similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and local address proof document before the court and photo ID proof of his sureties.
7. He shall appear before the court on all hearing dates.
8. 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 26h day of September 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.