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 16TH DAY OF SEPTEMBER 2022
Crl. Misc.No.8628/2022
Petitioner :
(accused)
Sri. Ashik U.B., S/o Late Biju,
Aged about 24 years,
R/at: #132, Sarojamma Building,
Near Sonal Garments, Peenya,
Bengaluru560 058.
(By Sri Mahendra N., Adv.)
V/S.
Respondent :
State by Soladevanahalli Police
(By Public Prosecutor)
ORDER
The petitioner has filed this petition U/Sec.439 of
Cr.P.C., to enlarge him on bail, in Crime No.191/2022 of
Soladevanahalli Police Station registered for the offences
punishable U/Section. 8(c) and 22(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.
N.D.P.S.
Act
not
The procedure contemplated under
followed
while
recovery.
Petitioner
is
permanent resident of the address shown in the cause title and
he is having deep roots in the society. 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 25 grams of MDMA crystal
which is a commercial quantity from accused.
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
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Crl.Misc.No.8628/2022
pending. If the petitioner is granted bail he may tamper with
the prosecution witnesses. 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 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 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:
4
REASONS
7. POINT NO.1: The PSI of Soladevanahalli PS., is the
complainant and raiding officer. The gist of the allegation reads
as here under:
On 22.08.2022, at about 1.00 pm., the complainant has
received credible information at Chikkabanavara in front of
Madhulakshmi wood industries, Medarahalli road, one person
is selling prohibited MDMA to the public and college students.
On receipt of the information he has informed the matter to
the ACP, obtained permission to conduct raid. He has called
the panchas to the police station and informed them about the
information he has received.
He along with his staff and
panchas had been to the spot. There he has seen one person
who
was
moving
suspiciously.
apprehended and enquired.
The
said
person
was
He has revealed his name as
Ashik U B native of Tiruvananthapuram, Kerala. On further
enquiry he has revealed that he is in possession of contraband
MDMA crystals.
He is selling the contraband per gram
Rs.8000/ to 10000/ to the students. The contraband which
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Crl.Misc.No.8628/2022
5
was in the possession of the accused was seized. On weighing
the same it was found to be 25 grams valued at Rs.2 lakhs. A
detail mahazar was drawn in the spot, accused along with
seized contraband was brought to the station. A detail report
is submitted. Basing on the report, a case in Cr.No.191/2022
is registered for the offence punishable U/s. 8(c) and 22(C) of
NDPS Act. The accused herein is produced before the court
and remanded to judicial custody.
8. It is vehemently argued by the learned counsel for the
petitioner that the petitioner is gainfully employed in a
company.
He
hails
complainant/raiding
immediately on
from
officer
a
has
respectable
not
family.
registered
receipt of information.
the
The
case
After seizure
of
contraband and apprehension of accused, case has been
registered. The complainant was in the station for more than 2
hours after receipt of information, he has not rushed to the
spot immediately on receipt of the information. There is delay
in filing the FIR.
been
followed
The mandatory provisions of law have not
thereby
causing
serious
doubt
on
the
6
investigation, search and seizure procedure. The petitioner is
falsely implanted. In the event of grant of bail he is ready to
offer surety for his appearance before the court.
He is no way
connected to the drugs which were seized in the case. He
major
portion
of
investigation
is
concluded.
Custodial
interrogation is not warranted. He is entitled for bail.
9.
It is argued by the prosecution that the petitioner is
apprehended with commercial quantum of contraband.
The
offence alleged against the petitioner is punishable with
imprisonment not less than 10 years and it may extent to 20
years.
The case is still under investigation.
grant
of
bail
he
may
abscond
and
In the event of
may
hamper
the
investigation.
10.
In careful analysis of rival contentions and the
prosecution papers available on record.
The investigating
agency seized 25 grams of MDMA crystal. As per specification
of small and commercial quantity of narcotic drug or
psychotropic
Department
substance
of
Revenue
issued
by
Ministry
Notification
of
S.O.1055(E)
Finance
dated
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Crl.Misc.No.8628/2022
19.10.2001 at at Sl.No.134 the narcotic drug – MDMA, Ecstasy
weighing 0.5 grams is a small quantity and 10 grams is
commercial quantity. In the present case, 25 grams of MDMA
is seized which is a commercial quantity. The petitioner has
not putforth any material before this Court that, he is not in
possession of commercial quantum of contraband seized in the
case.
11.
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. 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
8
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 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
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9
Crl.Misc.No.8628/2022
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
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, in all grams of 25 grams of MDMA
seized
from the accused.
At this stage, there is primafacie
material available against the petitioner in regard to the
possession of narcotic drug. The learned counsel for petitioner
10
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 16th day of September, 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.