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 THE12 st DAY OF AUGUST 2022 Crl. Misc.No.7564/2022 petitioners : 1. Sri. Ashok Kumar (accused No.1 & 2) S/o Javara Hanumaiah Aged 35 years R/at Benachanahalli, Sompura Hobli Nelamangala, Bangalore Rural District.
2. Sri. Mallikarjunaiah S/O Late Hanumaiah Aged 52 years R/at Benachanahalli, Sompura hobli Nelamangala, Bangalore Rural District.
(By SriM.D.G.Adv. V/S. Respondent : State by Thyamagondalu Police Station (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioners to enlarge them on bail, in Cr.No.53/2022 of Thyamagondlu PS., registered for the offence punishable U/Sec.20(B) of NDPS Act.
2. The grounds urged by the petitioners for grant of
bail are as under: That the petitioners are innocent and law abiding citizens. 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 offences are 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 petitioners are permanent residents of the address 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. CCH-33 Crl.Misc.No.7564/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 4 Kgs., 500 grams of ganja. The offences alleged against the petitioners are punishable with rigorous imprisonment for a term upto 10 years and shall also be liable to fine. There is a primafacie case available against the petitioners. They are habitual drug dealers. There is primafacie case made out against petitioners. If petitioners are released on bail, they will continue the profession of narcotic drug selling, and they may abscond and tamper evidence of the prosecution. 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 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 PI, ., who is the
complainant in this case before the Thyamagondlu PS. The contents of the report is as here under:- On 22.7.2022 at about 4.15 pm., Police constable of Thyamagondlu police station who was on crime duty has submitted a report before the SHO. It is stated in the report that when he was proceeding at Kuntubommanahalli Manne in regard to Cr.No.52/22 at about 4.00 pm., at Muddalingahalli Thyamagondlu Hobli railway station near Anjaneya Swamy temple, two persons moving suspiciously in a TVS XL holding a bag carrying ganja. The informant has given the said information to the crime police. He has prepared a report and submitted before the Station House officer. Basing on the said report a case in Cr.No,.69/2022 is registered against unknown persons for the offences punishable U/s.20(B) of NDPS Act. Thereafter, the complainant police submitted a requisition to higher officer obtained permission to conduct raid. On obtaining permission the complainant PSI., along with panchas and staff has been to the place of incident, there he has seen two persons in their two wheeler bearing No.KA 11 EB 4365 CCH-33 Crl.Misc.No.7564/2022 carrying a bag. When they were enquired about the contents of the bag they have stated that they are carrying ganja leaves. They have grown the said ganja plants in the land of Appayanna. The plants were sown about two months ago, now it is grown and they are carrying the leaves to sell to the customers to gain illegally. The complainant PSI., has checked the leaves and it smelt like ganja and it was smelling pungent. He has seized the said ganja leaves, seeds and stem containing root. The said ganja plant was weighing 4 Kgs., 500 grams. A detail mahazar was drawn. Accused were arrested and were produced before the court. They were 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 the 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 4 Kgs., 500 grams of ganja is seized from the petitioners. The offence punishable with imprisonment upto 10 years and with fine. There is 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 22.07.2022 PI of Thyamagondlu PS., has conducted raid and apprehended the petitioners. On looking to the seizure panchanama the drugs seized is weighing 4 Kgs., 500 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 4 Kgs., 500 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: CCH-33 Crl.Misc.No.7564/2022 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 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 4 Kgs., 500 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. The offence alleged against the petitioners are not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. Their Voluntary statements is already recorded. As per the information provided by the petitioners they are permanently residing in the addresses 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.
CCH-33 Crl.Misc.No.7564/2022
3. They shall not tamper the witness or abscond.
4. They shall co-operate with I.O for investigation.
5. They 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 his 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.
[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 12st day of August 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*