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 28th DAY OF MARCH 2024
Crl.Misc.No.3007/2024
Petitioner :
(accused)
Sri Siraj Ahamed Khan,
S/o. Mohammed Islam Mahaballah Khan,
Aged about 49 years,
R/at Plot No.43/F/3, Road No.6,
Opp. A1 Mukada Masjid, Saibaba Zo,
Shivaji Nagar, Govandi,
Mumbai, Maharashtra400043.
(By Sri.Balakrishna Jagtap, Adv.)
V/S.
RESPONDENT:
Inspector of Customs,
Air Intelligence Unit,
Kempegowda International Airport,
Devanahalli, Bengaluru560300.
(By Spl. Public Prosecutor)
2
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in C.No.VIII/48/274/2023
24 of the Inspector of Customs, AIU registered for the offence
punishable U/Sec. 8(c), 21(c), 23(c) and 28 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 of NDPS Act has not been complied.
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. The petitioner is in judicial custody
since his arrest and he is not required for further custodial
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Crl.Misc.No.3007/2024
interrogation and he is only bread earner of his respective
family. Hence, sought to grant bail.
3.
The objection raised by the prosecution is that the
investigating agency has seized 1399.40 grams of Ganja
contraband.
The petitioner 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 a habitual drug dealer.
In the event of 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
madeout
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 Inspector of Customs, AIU , KIA,
Devanahalli Bengaluru is the complainant in the case.
The
contents of the report is as here under:
On 25.03.2024 at about 1153 A.M. the AIU Officers have
intercepted one passenger who attempted to smuggle Narcotic
Substance into the country having Passport No.R9235807,
who arrived in Bangalore from Bangkok in Thai Airways, Flight
No.TG325.
When the Trolley bag of the said passenger was
checked in a XRay machine, it revealed presence of organic
material like that of plant origin. When he was enquired he
has stated that it is fruits and eatables. The officers were not
satisfied with the answers have open examine the baggage
when the said baggage was opened and Kellogs packets were
found.
When the said packet was opened in that green
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coloured chunks were found. The smell revealed presence of
Ganja or Marijuana when it was weighed the weight came
around 201.40 Grams.
Other pouches which were found in
the baggage were checked and it was found to contain green
coloured chunks weighing 200 grams, 275.10 grams, 248.90
grams, 199.80, 275.40 grams, 200.20 grams. Total weight of
contraband is 1,399.40. It was tested with DD Kit, which gave
result for the presence of Ganja. The said contraband article
was seized under the mahazar, the packing material baggages
were seized. The statement of accused was recorded. He was
produced before the court and was remanded to the J.C. He is
prosecuted in the aforesaid case.
8.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
25.3.2024 complainant has intercepted the petitioner and his
luggage bag was checked and ganja was found and seized from
the baggage.
The petitioner has travelled from Bangkok to
Bangalore in Thai Airways. On looking to the seizure
panchanama the drugs seized from accused is weighing
1399.40 grams of ganja. As per specification of small and
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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 1399.40 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
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7
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 1399.40 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.
The major portion of investigation in the case is
concluded as the incriminatory article is already seized from
accused.
The offence alleged against the petitioners is not
punishable with death or imprisonment for life. Further
custodial interrogation are not warranted. Their Voluntary
statements are already recorded. As per the information
provided by the petitioners, they are permanently residing in
the address shown in the cause title. The apprehension of the
prosecution that they may abscond and may protract the trial
could be compensated by imposing stringent conditions.
In
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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 are enlarged on bail on
executing personal bond for a sum of Rs.1,00,000/
with one surety 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 cooperate
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 their
sureties.
with
I.O
for
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Crl.Misc.No.3007/2024
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 GradeII, directly on the computer,
typed by her, corrected, signed and then pronounced by me in Open
Court on this the 28th day of March, 2024).
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
10
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Crl.Misc.No.3007/2024
Order pronounced in the open court
(vide separate order)
The Petition filed by the petitioner U/Sec.439 of
Cr.P.C is hereby allowed.
The petitioner is are enlarged on bail on
executing personal bond for a sum of Rs.1,00,000/
with one surety 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 cooperate
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 their
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.
with
I.O
for
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(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.