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 6TH DAY OF DECEMBER 2022
Crl. Misc.No.11466/2022
Petitioners :
(accused No.4 & 5)
1. Sojin, S/o.Thomas Kutty, a/a 21
years, R/at No.1016, 10th Floor,
Mahaveer Desire Apartment,
Chikkabanavara Railway Station,
Bengaluru 560090
2. Kiran S.Kumar, S/o.Kumar, a/a
21 years, At new Building, Deadend,
6th Cross, Kirloskar Layout,
Bengaluru
(By Sri Mahesh.N, Adv.)
V/S.
Respondent :
State by Soladevanahalli Police
Station
(By Public Prosecutor)
2
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
Petitioners to enlarge them on bail, in Cr.No.92/2022 of
Soladevanahalli PS., registered for the offences punishable
U/Sec.20(b), 20(b) (i), 22(c) of N.D.P.S. Act in Spl.CC
No.2740/2022.
2. The prevalent grounds urged seeking bail:
That the Petitioners are very innocent and law abiding
citizen. They have not committed any offence much less the
offence as alleged.
They have 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. There is no connection or active part played
by this Petitioners. There is no recovery from the present
Petitioners. As per the prosecution they have seized the drugs
from the house of Petitioners. The petitioners are students of
RR college, Bengaluru and studying B.Sc., in operation Theater
Technology final year in the said college and presently
undergoing internship of the said course. Petitioners are
3
CCH33
Crl.Misc.11466/2022
permanent resident in the address as shown in the cause title.
The Petitioners are ready and willing to abide by any
conditions imposed by this court in the event of grant of bail.
They are ready to offer surety for their 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 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1,188 grams from the accused persons. The weed
oil seized is a commercial quantity. There are sufficient
materials available against the Petitioners and the 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 their release they may tamper with
the prosecution witnesses. Incriminatory articles were seized
from their custody.
offences.
They may involve themselves in similar
Investigating agency by complying the provisions
prevailed under the act has seized the contraband from the
4
Petitioners. The Petitioners 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 Petitioners.
4. Heard learned counsel for the Petitioners and the
prosecution.
5. The points that arise for my consideration are as here
under:
1. Whether Petitioners have made out
sufficient grounds to enlarge them 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 PI, Soladevanahalli PS., Bangalore
has put the criminal law into motion. The gist of the allegation
reads as here under:
5
CCH33
Crl.Misc.11466/2022
On 11.5.2022 at about 11.00 am., when the complainant
was in the station he has received credible information that at
near Chikkabanavara Railway Parallel road some persons are
selling weed oil and ganja to the public. He has informed the
matter to ACP and obtained permission to conduct raid. He
has called the panchas. He has been to the spot and
apprehended 2 persons. On enquiry they revealed their names
and addresses. They are on Subin Binoy and Mohammed Irfan
that is accused No.1 and 3. Asst. Commissioner of Police was
called to the spot to conduct personal search. During personal
search of A1 and 3, 10 grams of ganja in 10 packets and 8 to
10 grams of weed oil in 12 plastic pockets were found after
seizing the contraband and on enquiring them they have
stated that they are R/at Flat No.1016, 10th floor of Desire
Apartment they are staying along with one Sojin, Kiran Kumar,
Anandu Murali and Mohammed Shiyas that is accused Nos.4
to 7. The accused No.1 and 3 were selling ganja and weed oil
along with other accused at the instance of accused 1 and 3
search was conducted in flat No.1016 of Desire Apartment. In
the said apartment accused no.4 to 7 were found. During the
6
house search 1580 grams of ganja, 1 Kg., 960 grams of weed
oil 1188 grams of weed oil, 1 weighing machine, vessels were
found.
The said articles were seized under Panchanama.
Accused Nos.1, 3 to 7 were arrested. Thereafter, basing on the
report of raiding officer, a case in crime No.92/2022 is
registered against against accused No.1 to 7 for the offences
punishable U/sec. 20(b), 20(b) (i), 22(c) of N.D.P.S. Act. The
present Petitioners are accused Nos.4 and 5.
8. It is vehemently argued by the learned counsel for the
Petitioners that Petitioners are falsely implicated in the said
case.
Custodial interrogation is not warranted.
They are
entitled for bail.
9.
It is argued by the prosecution that the Petitioners
have committed heinous offence and the drugs were seized
from their custody.
There are primafacie material available
against them.
10. On looking to the prosecution papers the quantum
of narcotic substance seized is 1 Kg., 580 grams of Ganja, 1
CCH33
Crl.Misc.11466/2022
7
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1,188 grams.
As per specification of small and
commercial
narcotic
quantity
of
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 weighing 1000 grams is small
quantity and 20 Kgs., is a commercial quantity. Likewise, at
Sl.No.23 the narcotic drug – weed oil/ganja oil weighing 1 Kg.,
is a commercial quantity.
In the present case 1 Kg., 580
grams of Ganja, 1 Kg., 960 grams of Weed oil/ganja oil and
154 weed oil filed boxes in all 1,188 grams
which is
commercial quantity. Further more the petitioner herein was
apprehended along with accused No.1 with the contraband
ganja in the place of incident.
Their voluntary statement is
recorded. Huge quantum of contraband is in their conscious
possession. The contention raised in the present petition is no
document is collected by the IO in regard to the rental
agreement of the flat could not be entertained that for the
simple reason that the said aspect has to be considered at the
time of full fledged trial. That apart the petitioner herein along
8
with accused No.1 has shown the Mahaveer Desire Apartment
to the investigating agency from where the other accused along
with huge quantum of contraband is seized.
Yet another
contention raised by the petitioner is no document collected by
the IO., in regard to the financial transaction in regard to drug
peddling, the said aspect has to be probed at the time of trial.
12.
It is well settled principal of law that while
considering the bail plea of the accused this court has to
appreciate the nature and gravity of allegations made against
the accused, severity of punishment, danger of absconding if
released on bail, criminal antecedents and the facts and
circumstances in each case has to be appreciated carefully
while entertaining the bail plea of each one of the accused.
The Hon’ble Apex Court in the recent judgment in the case of
State of Kerala Vs., Mahesh in Crl. Appeal No.343/2021,
(SLP.Cr.No.1530/2021) dated 19.3.2021 has cautioned the
courts against mechanically granted bail in heinous offenses,
saying the seriousness of the charge is a basic consideration
before setting an accused free on trial.
The Hon’ble Apex
CCH33
Crl.Misc.11466/2022
9
Court while setting aside the order of Kerala High court bailing
out a man accused of stabbing to death a 30 year old dentist
in front of her father in September 2020 and in the said case
accused had gone absconding for several days before his
arrest.
Though the trial court denied him bail, the Hon’ble
High Court set him at liberty.
The Hon’ble Apex Court
observed that the nature of offence is one of the basic
considerations for the grant of bail more heinous is the crime,
the greater is the chance of rejection of the bail, though,
however, depending on the factual matrix of the matter.
While granting the bail court has to keep in mind not only the
nature of accusation, but the severity of the punishment.
Other criteria include reasonable apprehensions of influence
witnesses or tampering of evidence.
It is also observed that
grant of bail is a judges discretion however, calls for exercise of
such a discretion in a judicious manner and not as a matter of
course.
Order of bail bereft of any cogent reason cannot be
sustained.
13. Further in another judgment of Hon’ble High Court
of Karnataka in a case Crl.Petition No.5358/2015 State of
10
Karnataka Vs., D.B.Sandeepa dt.3.3.2016 has observed
that mere filing of charge sheet against persons accused of
heinous offences cannot be the reason to release them on bail.
The trial courts will have to keep in mind the guidelines issued
by the Hon’ble Apex Court from time to time for examining the
nature in gravity of the offences, severity of punishment in the
event of conviction, danger of absconding if released on bail,
and facts and circumstances in each case before granting bail
to the accused. The Hon’ble High Court passed the order while
canceling the bail granted by the learned Sessions Judge.
14.
In the recent judgment of Hon’ble High Court of
Karnataka in the case of Vinay Rajashekarappa Kulkarni
Vs., CBI in Crl.Petition No.2601/2021 dated 24.5.2021
while rejecting the bail plea of the accused for the offence
U./s.302 R/w.Sec.120 (B) of IPC., the Hon’ble High Court
made an observation that even if there is no primafacie
material available on record against the accused, the gravity of
offence and severity of the punishment, character, behaviour
and standing of the accused, reasonable apprehension of the
1
1
CCH33
Crl.Misc.11466/2022
witnesses being tampered with has to be considering by
making a detailed observations on the facts of the said case
has rejected the bail plea of petitioner.
15.
Before granting bail the court should evaluate if
there is reasonable apprehension of accused tampering the
evidence or threatening the complainant.
The Hon’ble Apex
Court reemphasized on the parameters for granting bail to the
accused, while quashing the bail granted to an accused
charged with carrying out supari killing of a person in the case
Ashiyana PS., of UP, Lucknow district.
16. The accused involved in heinous offence should not
be granted bail arbitrarily. As various factors like the
propensity to tamper with evidence and the plausibility of
escape should be considered before the relief is given.
The
Hon’ble Apex Court chided the order of Hon’ble Apex Court of
Calcutta in granting the bail to accused who is an accused in a
murder case.
12
17.
The trial courts will have to keep in mind the
guidelines issued by the Hon’ble Apex Court from time to time
for examining the nature in gravity of the offences, severity of
punishment in the event of conviction, danger of absconding if
released on bail, and facts and circumstances in each case
before granting bail to the accused.
18.
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:
1
3
CCH33
Crl.Misc.11466/2022
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 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
14
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.
19. 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.
CCH33
Crl.Misc.11466/2022
1
5
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.
20.
As per the enunciation of law in the aforesaid
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.
Herein the present case the
petitioner was apprehended and 1 Kg., 580 grams of Ganja, 1
Kg., 960 grams of Weed oil/ganja oil and 154 weed oil filed
boxes in all 1188 grams was seized from the apartment of
petitioner
and
possession.
other
accused
and
also
from
physical
The present petitioner and accused No.1 has
shown Mahaveer desire Apartment to the investigating agency
and there huge quantum of contraband seized along with other
incriminatory
material.
The
other
accused
were
also
apprehended at the instance of accused Nos.1 and 3. The
16
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 which is
commercial quantity.
The final report filed by the police
indicates that the petitioner is in conscious possession of
commercial quantity of contraband. 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.
14. Point No.2:
In the result, I proceed to pass
following:
ORDER
The petition filed by the Petitioners 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 6th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
1
7
CN/*
CCH33
Crl.Misc.11466/2022