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 24th DAY OF AUGUST 2022
Crl. Misc.No.8077/2022
Petitioner :
(accused No.2)
Srijith S, S/o/Sreedhar, 24 years,
Nair Community, residing at
No.5/2405, Upaas Kaavadiar, Near
Vindsor Hotel, Trivandrum, Kerala
state.
(By Sri M.N., Adv).
V/S.
Respondent :
State by Madanayakanahalli 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 in Cr.No.316/2022
of
Madanayakanahalli
PS., registered for the offence
punishable U/Sec. 22(b) of NDPS Act.
2
2. The grounds urged by the petitioner for grant of bail
are as under:
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 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. Petitioner
has no criminal antecedents. The petitioner is permanent
resident of the address shown in the cause title. 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 52 grams of MDMA and
19 grams of ganja.
The offences alleged against the
petitioner is punishable with rigorous imprisonment for a
term upto 20 years and shall also be liable to fine. There is
a primafacie case available against the petitioner. He is
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habitual drug dealer.
CCH33
Crl.Misc.No.6878/2022
There is primafacie case made out
against petitioner. If petitioner is released on bail, he will
continue the profession of narcotic drug selling, and he 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 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:
REASONS
7.
Point No.1: The PI of Madanayakanahalli., has
put the criminal law into motion. The gist of the allegation
reads as here under:On 29.6.2022, at 07.00 PM., the
4
complainant was in a police station he has received a
credible information that at Thamanahalli village, near
Acharya college sub way from eucalyptus tree bush towards
Jnanajyothinagar, on mud road, two persons are selling
MDMA to the customers. On receiving the information the
complainant informed intimated the matter to his higher
officer obtained permission and arranged a raiding team and
visited the spot and found the suspected persons. That is
Accused No.1 and 2. He has apprehended them and on
enquiry they revealed their names and addresses. On
personal search they were found in possession of MDMA 52
grams and 19 grams of ganja. The contraband was seized
and a detail mahazar was drawn in the spot. Accused No.1
and 2 were arrested and a report is submitted before Station
House Officer, which is the basis to register the case against
the accused No.1 to 4 in Crime No.316/2022 for the
offences punishable under Sec.22(b) of NDPS Act.
Accused
No.1 and 2 were produced before the court and were
remanded to J.C. The present petitioner is accused No.2 in
the case.
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Crl.Misc.No.6878/2022
5
8.
Basing on the voluntary statement of accused
Nos.1 and 2, the accused No.3 & 4 were arrested on
2.7.2022. From the possession of accused Nos.3 and 4, 10
grams of MDMA and 1 kg., of ganja is seized.
9. It is argued by the prosecution that the petitioner
has committed heinous offence 52 grams of MDMA and 19
grams of ganja is seized from the petitioner and other
accused.
The offence punishable with imprisonment upto
20 years and with fine.
There are primafacie material
available against him.
On
careful
analysis
of
rival
contentions,
the
investigating agency seized 50 grams of MDMA from
accused No.1 and 2 grams of MDMA and 19 grams of ganja
from accused No.2 on 29.6.2022. 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.134 the narcotic drug – MDMA
weighing 10 grams is a commercial quantity. In the present
case 52 grams of MDMA narcotic substance is seized which
is a commercial quantity. The contention of the petitioner
6
that
the
petitioner
is
in
JC,
the
major
portion
of
investigation is concluded and his further detention is not
warranted
is
unsustainable,
the
petitioner
herein
is
apprehended with commercial quantity of contraband by the
investigating agency.
As per the investigation papers, the
investigation is in progress.
11. learned counsel for petitioner has referred to the
order passed by this court in respect of bail plea of accused
Nos.3 and 4. This court has granted bail to the accused
No.3 and 4. Accused Nos.3 and 4 were arrested on
2.7.2022.from their conscious possession the contraband
seized is intermediate quantity.
Further, the investigating
agency has failed to produce material before this court in
regard to their role in procuring commercial quantity of
contraband by accused Nos.1 and 2.
this court on
considering the material available against accused Nos.3
and 4 has entertained their bail plea.
As against the
present petitioner, he is apprehended along with accused
No.1.
the
contraband
seized
from
their
conscious
possession has to be collectively. When they were together
they
were
apprehended.
Commercial
quantity
of
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CCH33
Crl.Misc.No.6878/2022
contraband is seized from their conscious possession.
Therefore, in the case of present nature the ground of parity
could not be admissible in view of the nature and
seriousness of allegations against each one of the accused in
the case.
12. Learned counsel for petitioner has referred to the
judgment of Hon’ble Apex Court in the case of State of
Punjab Vs., Balbeer Singh (1994 3 SCC 299) in the said
case, the Hon’ble Apex Court has discussed in detail about
the compliance of mandatory requirements stipulated under
41 an 42 of NDPS Act. It is discussed in the order that the
court has to consider whether any prejudice has been
caused to the accused and also examine the evidence in
respect of search in the light of the fact that the said
provisions have not been complied with and further consider
whether the weight of evidence in any manner effected
because of non compliance.
The effect of such non
compliance will have a baring on the appreciation of
evidence of the official witness and other material depending
upon the facts and circumstances of each case.
The
testimony of a witness is not to be doubted or discarded
8
merely on the ground that he happens to be an official, but
as a rule of caution and depending upon the circumstances
of the case, court look for independent corroboration. I have
carefully gone through the case law.
Here in the present
case this court is considering the bail plea of petitioner at
the stage of investigation and pretrial.
The prima facie
material what ever placed by the investigating agency has to
be considered while dealing with the bail petitions.
The
material available on record indicate that there is primafacie
material
against
the
petitioner
that
he
is
found
in
possession of commercial quantum of contraband. The cs
law referred to is of no assistance to the petitioner herein.
13. He has referred to the case of Ram Singh Vs.,
CBI., reported in 2011 (11) SCC 347 judgment of Hon’ble
Apex Court where it is discussed while appreciating the
appeal preferred against the order of conviction.
On
considering the facts and circumstances in the case the
Hon’ble Apex Court has allowed the Appeal and set aside
the judgment of conviction.
But in the dictum it is
discussed that confessions recorded by the officer are
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Crl.Misc.No.6878/2022
9
admissible in evidence and could not be thrown out of
consideration. The relevant factors to be considered before
acting solely on confession has been discussed.
The said
case law is on a different facts and circumstances, with due
respect it may not be made applicable.
14. He has also referred to the judgment of Hon’ble
High Court Punjab and Harayana reported in 2022 SCC
online P&H 1296 Pankaj Vs., State of Punjab.
carefully gone through the judgment.
I have
The Hon’ble High
Court has entertained the bail plea of petitioner on the
ground that seizure has been effected in contravention of
mandatory provisions of Sec.50 and further on appreciating
the facts in the said case.
Without due respect the said
order may not be made applicable to the present case as the
facts and circumstances are different.
He has also referred to the case of Anil Kumar Das Vs.,
State of Orissa reported 2016 SCC online Orissa 361 in the
said case the question that arose before the Hon’ble High
Court is whether 20 Kgs., of ganja comes within commercial
quantity of Sec.2(viia) of NDPS Act. It is held that
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commercial quantity in respect of ganja is greater than the
quantity specified in the notification which would mean any
quantity more than 20 Kgs. The said judgment is in respect
of description of commercial quantity of ganja, how it has to
be considered. Here in this case, quantum of contraband
seized from present petitioner and accused No.1 50 grams of
MDMA which is more than the description of commercial
quantity.
He has referred to the case of Birbal prasad Vs.,
State of Bihar 2018 (11) SCC 488 in the said case the
Hon’ble Apex Court held that rigors of sec.37 would not be
made applicable when the quantum of contraband seized is
non commercial quantity.
Even the said judgment would
not be of any assistance to the present petitioner.
He has referred to the orders of Hon’ble High Court in
Crl.Petition 4620/2020 dated 13.1.2021, 7148/2020
dated 15.2.2021 Dilip S Vs., State, Jindo Vs., State. I
have carefully gone through the order.
The Hon’ble High
Court entertained the bail plea on looking to the facts and
circumstances
in
the
said
case.
The
facts
and
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CCH33
Crl.Misc.No.6878/2022
circumstances in the said case differs from the present.
Hence, with due respect it may not be made applicable.
15. 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
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 :
12
“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 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.
Apex Court
In the said case the Hon’ble
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
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CCH33
Crl.Misc.No.6878/2022
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 non
application 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.
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;
14
(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.
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 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 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
15
CCH33
Crl.Misc.No.6878/2022
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 52 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
16
petitioner 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.
16. 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 24th day of August 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*