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 21st DAY OF JANUARY, 2023
Crl. Misc.No.9/2023
Petitioner :
(accused No.2)
Somashekar,
S/o.Shamanna
Aged about 39 years,
Res:No.70, 7th ‘D’ Cross, Rose
Garden, Neelasandra,
Bengaluru5600046
(By Smt.J.S.Nalini, Adv.)
V/S.
Respondent :
State of Karnataka by RMC Yard 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.153/2022 in Spl.CC
284182022 for the offence punishable U/Sec. 20(B) (c) of
N.D.P.S. Act.
2
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. The quantity seized from the
possession of the petitioner is less than commercial quantity.
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 23 Kgs.,300 grams of ganja
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
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Crl.Misc.9/2023
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.
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:
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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 RMC Yard PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On
18.9.2022
at
about
11.00
a.m,,
when
the
complainant was discharging duties in the police station he
has
received
an
information
that
on
Tumkur
road,
Marappanapalya behind Govardhan Talkies, two persons were
carrying ganja in their two wheeler to gain illegal money. He
has immediately noted the information in the station house
diary,
informed
the
matter
to
higher
officer,
obtained
permission to conduct raid. Thereafter, the complainant along
with his staff and panchas has been to the spot around 11.30
am., and when he has mounting surveillance in the spot,
around 12.00 noon two persons were found there moving
suspiciously and were selling ganja. They were apprehended.
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Crl.Misc.9/2023
On enquiry they have stated that they are doing the sale of
ganja.
Gazetted officer was called to the spot and personal
search was also conducted. The cover which was in the hands
of accused persons were checked containing ganja.
The
contents of the cover was weighed in the weighing machine it
was found to be 2 Kgs., 100 grams. The ganja and the vehicle
seized under the mahazar. He has submitted a report before
the Station House officer, basing on the said report case in
Crime No.153/2022 is registered against accused persons for
the offences punishable under Sec.20(B) of NDPS Act. Accused
Nos.1 and 2 were arrested and produced before the court.
The voluntary statement of accused Nos.1 and 2
recorded. In the voluntary statement accused No.1 has stated
that the accused No.3 has handed over 25 Kgs., of ganja to
him which was purchased from a person of Odissa State. He
and accused No.2 have stored the ganja in the house of
accused No.2 situated at Neelasandra.
On the same day
accused Nos.1 and 2 were taken to their house situated at
Neelasandra, Rose Garden door No.17, In the hall two luggage
baggages and college bag were found.
On opening the bag,
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packets were found covered with plastic tapes. It was opened
and in that ganja was found. When the ganja was weighed in
the weighing machine. The total quantum of ganja found in
the house of accused No.2 is 20 Kgs., 150 grams. The entire
ganja was seized under the mahazar. The present petitioner is
accused No.2 in the case. Now, the Investigation is concluded
and charge sheet is filed.
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
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 23 Kgs., 300 grams of
seized from the petitioner and other accused.
ganja
is
The offence
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Crl.Misc.9/2023
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
18.9.2022 complainant has conducted raid and apprehended
accused.
On looking to the seizure panchanama the drugs
seized from the house of accused No.2 is 20 kgs 200 grams. 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 total quantum of ganja seized is 23 Kgs., 300 grams
is commercial quantity.
11.
On looking to the prosecution papers the quantum
of narcotic substance seized 23 Kgs.,200 grams of Ganja. 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
8
judgment
of
Hon’ble
Apex
Court
in
Crl.
Appeal
No.104153/2021 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:
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
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Crl.Misc.9/2023
respondent, we note that in Union of India v. Rattan Mallik, a two
judge 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 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.
12.
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 co
accused;
(ii) The complaint notes that the CDR analysis of the mobile
number used by the respondent indicates that the respondent
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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 held to be incorrect and has set aside the impugned
order.
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 primafacie
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
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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 in the judgment of Hon’ble Apex Court in the case of
State of MP Vs., Kajad reported in 2001 (7) SCC 673 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 are not guilty of the offences with which they are charged
and further that they are 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 are not guilty of such offence
and that they are not likely to commit any offence while on bail alone
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will entitle them 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 are 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 they are 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 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.”
16. As per the enunciation of law in the afore said dictum 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.
Here in the present case the
petitioner was apprehended and 20 kgs 200 grams of ganja
was seized from the house of present petitioner and total
ganja seized in the case 23 kgs 300 grams.
The quantity of
the contraband is commercial quantity. At this stage, there
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are primafacie materials available against the petitioner in
regard to the possession of narcotic drug.
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.
17. 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.
2.
3.
[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 21st day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.