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 22nd DAY OF DECEMBER 2022
Crl.Misc.No.12396/2022
Petitioner :
(accused)
Subhash Kumar S/o.Umesh, a/a 24
years, Per.R/at No.6, Near
Shanimathma Temple,
Devarabisanahalli, Varthoor Hobli,
Bengaluru
Per at Dhanpur Village, Khorma Than
Maroon Post, Khorman Safool, Bihar
(By Sri R.V.Venkatesh Murthy., Adv.)
V/S.

Respondent :
State by Excise PS Sarjapura Range
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.28/2022 of Excise
2
PS Sarjapura Range PS., registered for the offence punishable
U/Sec.8(c), 20(b), (ii) (B) and 25 of NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
the petitioner is innocent of commission of offence and
has been falsely implanted in the case.

The petitioner hails
from respectable family and has no bad antecedents or he is a
previous convict. The search and seizure procedures have not
been followed by the investigating agency.

The petitioner is in
judicial custody since the date of his arrest and he is no more
required as the investigation is already completed.

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. He has
no bad antecedents. He is the sole bread earner of his family.
Hence, sought to grant bail.

3. The objection raised by the prosecution is that the
investigating agency has in all seized 3 Kg 789 Grams of ganja
tablets from the possession of the accused. The accused is
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Crl.Misc.No.12396/2022
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 petitioner is punishable with
rigorous imprisonment for a term which shall extend upto 10
years. There is a prima­facie case available against the
petitioner.

He is an habitual drug dealer.

In the event of
grant of bail, he would abscond and may hamper the
investigation. 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 Affirmative
Point No.2: As per the final order for the following:
4
REASONS
7. POINT NO.1:­ A report submitted by Excise Sub­
Inspector who is the complainant in this case before the Excise
PS Sarjapura Range PS. The contents of the report is as here
under:­
On
09/12/2022
at
about
5.45
pm.,
when
the
complainant was on patrolling duty on the directions of his
superior officer received credible information about unknown
person is selling Ganja Tablet near Lakshmi Provision Store,
Near Huskoor­Kannahalli Road, Ghattahalli, Sarjapura Hobli,
Anekal Taluk. Basing on the information he has formed a team
to apprehend the suspected person.

He along with his staff
and panchas had been to the spot and found the suspected
person in the spot. On enquiry the suspected has revealed his
name as Subhash Kumar and he is from Bihar state. He was
questioned about the contents of the bag he has stated that he
is carrying ganja tablets.

When the said ganja tablets were
weighed the weight came around 3 Kg 789 Grams. The said
contraband is seized from his possession under a detail
mahazar. Accused is arrested. A detail report was prepared
CCH­33
Crl.Misc.No.12396/2022
5
and submitted before Excise Inspector. Basing on the report, a
case in Cr.28/2022­23 is registered for the offence punishable
U/s.20(b)(ii)(b), 25 and 8(c) of NDPS Act. Thereafter accused
was arrested and produced before jurisdictional Magistrate
and remanded to judicial custody.
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 search and seizure is
not complied. He is permanent resident 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 3 Kg 789 Grams of ganja tablets is
seized from the petitioner.

The offence punishable with
imprisonment upto 10 years and with fine. There are prima­
facie material available against him.

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10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
09.12.2022 complainant has conducted raid and apprehended
accused. On looking to the seizure panchanama the drugs
seized from accused is weighing 3 Kg 789 Grams of ganja
tablets. 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 3 Kg 789 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
should be released on bail, pending trial – hence, directions
issued to release appellant on bail, on certain conditions.

CCH­33
Crl.Misc.No.12396/2022
7
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 3 Kg 789 Grams of ganja tablets 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 petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.

His
Further
Voluntary
statement is already recorded. As per the information provided
by the petitioner he is permanently residing in the address
8
shown in the cause title. The apprehension of the prosecution
that he 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 petitioner U/Sec.439 of
Cr.P.C is hereby allowed.
The petitioner is enlarged on bail on executing
personal bond for a sum of Rs.1,00,000/­ with Two
sureties for the like sum with following conditions.
1.

The petitioner 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.

He shall not leave the jurisdiction of this
court without prior permission.

3.

He shall not tamper the witness or
abscond.

4.

He shall co­operate
investigation.

5.

He shall not commit similar offence or
any offence while on bail.

6.

He shall furnish his photo ID proof and
with
I.O
for
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Crl.Misc.No.12396/2022
local address proof document before the
court and photo ID proof of his sureties.
7.

He shall appear before the court on all
hearing dates.

8.

Breach of any of the conditions by the
petitioner 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 22nd day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.