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 19 th DAY OF SEPTEMBER 2022 Crl. Misc.No.8341/2022 Petitioner : Sinu, S/o.Kuttan Shankar, (accused) a/a 44 years, Arasuvila Veedu, Aroor Ponganadu Post, Trivandrum, Kerala-695601 (By Sri.AKT Adv.) V/S. Respondent : State by Directorate of Revenue Intelligence,BZU (By Spl. 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 F.No.DRI/BZU/S-IV/ENQ- NIL(INT-03) 2022 of Directorate of Revenue Intelligence, BZU, registered for the offences punishable U/Sec.8(c) r/w.Sec.21,23,28 and 29 of N.D.P.S. Act.

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 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 16 Kgs., of Heroin which is a commercial quantity. There are sufficient material available against the petitioner, and the said offences are punishable with rigorous imprisonment for a term which shall not be less CCH-33 Crl.Misc.8341/2022 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. 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 Negative Point No.2: As per the final order for the following:

REASONS

7. POINT NO.1:- The IO., DRI has apprehended the

accused Nos.1 and 2 in the case with commercial quantum of contraband. The IO., DRI, while he was discharging duties in the office has received credible information that one Indian National by name Seenu bearing passport No.N6709605 is carrying huge quantity of drugs in his baggage and traveling to Delhi by Rajadhani Express Train bearing No.22691 which would be departing from the platform No.8 at 20.00 hours from KSR Bengaluru Railway Station. Basing on the said intelligence report the DRI officers along with the panchas reached the platform No.8 of KSR Bengaluru Railway station around 7.30 PM on 01/08/2022. The DRI Officers informed the panchas about the information they have received. After reaching the platform when they positioned near the coach, Train No.22691 got stationed at platform No.8. Passenger of coach NoA2 started entering into the train. After the passengers of the coach got settled at their respective seats, the officers entered the coach and proceeded towards seat CCH-33 Crl.Misc.8341/2022 No.19 along with Mahazar Witnesses. When the person sitting in seat No.19 is questioned he was has revealed his name as Senu and he has shown the ticket to the officers. When the contents of his bag was questioned he has stated that he is not in possession of any incriminatory article. When the officers specifically questioned about carrying contraband. He replied in negative. Thereafter, he has answered that he is carrying contraband. When the baggage was checked there it was found 16 Kgs., of heroin. The contraband which was found in the bag was tested with Drug Detection kit and it gave positive answer for heroin. The contraband and other articles were seized under the mahazar. Accused was brought to the office, served with summons U/s.67, his statement came to be recorded. After recording the statement and seizure on the reasonable belief that the accused has carried commercial quantum of contraband he was arrested and produced before the court and is prosecuted for the offences punishable U/s.8(c) r/w Sec.21,23,28 and 29 of N.D.P.S. Act. Thereafter, after production of the accused before the court he was remanded to judicial custody.

8. In the present bail petition the learned counsel for

petitioner contends that petitioner is falsely implanted in the case and there is no material to connect him to the crime. The alleged recovery is made as per the remand application reads that recovery is made at railway station. But as per the remand application recovery is made in the office of the respondent. Thus, it creates doubt about the recovery. The seizure is not made before the gazetted officer. There is non compliance of mandatory provisions. Recovery mahazar is doubtful as nothing was recovered from the spot. The railway ticket of the petitioner is collected and it is stated that coach No.9 seat No.6. But the seat No., as per the investigating agency is 19. Thus, it creates doubt as to apprehension of the petitioner from the said train. No spot mahazar was drawn in the spot as it was raining. Origin of the contraband is from Africa. The petitioner who travelled from Africa landed at Bangalore. His baggage was searched by the officials. The passport of the petitioner is not seized. He is not arrested at the Airport. Even the seat No., shown in the ticket varies. CCH-33 Crl.Misc.8341/2022 Thus, it is urged that the petitioner who is falsely implanted in the case is entitled for bail.

9. The prosecution argues that the petitioner is arrested

with commercial quantity of contraband i.e., 16 Kgs., of Heroin is seized from the possession of the petitioner. After drug deduction test the article answered positive for heroin. There are sufficient grounds available against the petitioner for transporting commercial quantum of contraband. In the event of grant of bail he may abscond and may hamper the investigation and the trial.

10. The arguments advanced by the learned counsel for

the petitioner that no spot mahazar was drawn at the railway station as it was raining and further the non compliance of the procedure, is without any basis as the petitioner was apprehended in the railway with commercial quantity of heroin. After apprehension he was brought to the office of DRI, there his statement recorded. Thereafter on the reasonable belief he was apprehended and arrested. The change in the ticket No., or seat No., is a matter which has to be probed into at the time of trial. The contention advanced by the learned counsel for petitioner that the search and seizure is not in accordance with law is untenable. The petitioner herein is found in possession of 16 Kgs., of and for the heroin. He has failed to give appropriate answers for possessing the contraband. 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 at Sl.No.134 the narcotic drug – MDMA weighing 10 grams is a commercial quantity. In the present case 16 Kgs of Heroin which is a commercial quantity. The petitioner herein in found in possession of contraband.

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 CCH-33 Crl.Misc.8341/2022 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 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 non­ application 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 co­ accused. By making a detail observation in granting the bail to the accused is incorrect and has set aside the impugned order. CCH-33 Crl.Misc.8341/2022 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 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 the 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 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 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 CCH-33 Crl.Misc.8341/2022 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. In this case, 16 Kgs., of heroin seized from the petitioner herein. 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 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 stenographer, directly on the computer, typed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 19th Day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.