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 DECEMBER 2022
Crl.Misc.No.12401/2022
Petitioners :
(accused No.1 & 2 )
1. Sowmya Ranjan Mishra
S/o.Aryabhushan Mishra, a/a
28 years, R/at No. 3rd line,
Naraharipur, Sasan Damodar
Post, Puri, Odishsa State
2. Rabi Kishore Nanda, S/o.Bijay
Kumar Nanda, a/a 28 years,
R/at 3rd cross, Abbaiahreddy
Road, Yamalru Junction, HAL,
Marathahalli, Bengaluru.
Permanent Address
Mangala, Ghat Village, Pika
Sai Line, Puri Town Post,
Puri.
(by Sri.Pradeep.L Adv)
V/S.
Respondent :
State by Koramangala PS
(By Public Prosecutor)
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ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.259/2022 of
Koramangala
PS.,
registered
for
the
offence
punishable
U/Sec.20 (B) of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioners are very innocent and law abiding
citizen. They have not committed any offence much less the
offence as alleged. They have no knowledge of alleged crime
and falsely implanted at the instance of extraneous elements.
They are the only earning member of their respective families.
The mandatory provisions U/s.50 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 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
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appearance before this court. They have no bad antecedents.
They are the sole bread earners of their family. Hence, sought
to grant bail.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 8 Kgs 100 grams of ganja
from the possession of the accused. The accused are 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 petitioners are punishable with rigorous
imprisonment for a term which shall extend upto 10 years.
There is a prima facie case available against the petitioners.
They are habitual drug dealers.
In the event of grant of bail,
they would abscond and may hamper the investigation. Hence,
sought to reject the bail plea of petitioners.
4. Heard the arguments of both sides and perused the
records.
5. The points that arise for my consideration are as here
under:
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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 Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: A report submitted by PSI, Adugodi PS,
has put the criminal law into motion. The gist of the allegation
reads as here under:
On 12/12/2022 at 11.30 am.,
when the complainant
and her staff were on patrolling duty at I block, Ishwarya
junction of Kormangala Police Station limits, she has received
credible information that some two persons are selling
contraband to the students on Monday and Tuesday during
the college closing hours i.e., around 4.00 pm. The informant
has told the complainant that after the said suspect persons
leave the place that is 4 th block, Mastri Palya lake, vacant
space he has found ganja leaves fallen on the ground. He has
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smelled and confirmed that the said article is ganja.
The
suspects are aged in between 2528 years and they are
speaking Hindi. On receipt of information she came back tot
he station and noted the information in Station house diary,
informed the matter to higher officer. Registered a suomoto
case in Cr.No.259/22 against 2 unknown persons for the
offence punishable U/s.20(B) of NDPS Act. After obtaining
permission from higher officer she has proceeded to the
spot, mounted surveillance there.
Two persons came
there holding bags around 4.00 pm. They came in a car.
The informant has shown them as the suspected persons.
They were surrounded and apprehended. On enquiry they
have revealed their names as Sowmya Ranjan Mishra and
their native state is Odissa and they are from Pori district.
When they were questioned about the contents of the bag
they have stated that they are carrying ganja,.
opened and weighed.
It was
The weight came around 4 Kgs.,
500 grams in one bag which is in the possession of
accused No.1, when the bag of accused No.2 is opened
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containing ganja the weight of ganja came around 3 Kgs.,
600 grams. They have stated that they were selling ganja
to the students and customers to gain illegal money. The
incriminatory ganja was seized from the spot.
A detail
mahazar was drawn, they were arrested, produced before
the court and remanded to Judicial Custody.
8. It is argued by the learned counsel for petitioners that
they are planted in the case by the complainant police. They
are 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.
They are
permanent residents of the address given in the cause title. In
the event of grant of bail they are ready to abide by the
conditions which are being imposed by this court.
9.
It is argued by the prosecution that the petitioners
have committed heinous offence 8 Kg 100 grams of ganja is
seized from the petitioners.
The offence punishable with
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imprisonment upto 10 years and with fine. There are prima
facie material available against them.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
13.12.2022 complainant has conducted raid and apprehended
accused.
On looking to the seizure panchanama the drugs
seized from accused is weighing 8 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 12 Kg 260 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
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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 8 Kg 100 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 are not
punishable with death or imprisonment for life.
Further
custodial interrogation is not warranted. Their Voluntary
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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
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 petitioners U/Sec.439 of
Cr.P.C is hereby allowed.
The
petitioners
are
enlarged
on
bail
on
executing personal bond for a sum of Rs.1,00,000/
each with two sureties for the like sum with following
conditions.
1.
The petitioners 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.
They shall not leave the jurisdiction of this
court without prior permission.
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3.
They shall
abscond.
not
tamper
4.
They shall
investigation.
5.
They shall not commit similar offence or
any offence while on bail.
6.
They shall furnish their photo ID proof and
local address proof document before the
court and photo ID proof of their sureties.
7.
They shall appear before the court on all
hearing dates.
8.
Breach of any of the conditions by the
petitioners would entail cancellation of bail.
cooperate
the
with
witness
I.O
or
for
[Dictated to the stenographer, directly on the computer, typed and
computerised by him, corrected, signed and then pronounced by me in
Open Court on this the 21st day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*