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 27 th DAY OF SEPTEMBER 2022 Crl. Misc.No.8826/2022 petitioners : 1.Tapan1. Kumar Parida, S/o.Neelambar (accused No.3 & 4) Parida, a/a 27 years, R/at No.183, Nanjundappa Building, 1st Cross, Near Nisarga School, Hegganahalli, Bengaluru
2. Shaik Mastan, S/o.Moulali.S.K, a/a 47 years, R/at S.S.V.R.Construction, Labour Shed, Near H.P.Gas Godown, Hemmadahalli, Whitefield, Bengaluru
Native Address No.1/10, Addanki Road, Darsi Mandalam, Prakasham District, Andrapradesh (Now in JC) (By Sri.S.M., Adv. V/S. Respondent : State by Begur PS. (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.162/2022 of Begur 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.8826/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 48 Kgs., 930 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 petitioners.
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:- The complainant PSI., has received
information that on 16.6.2022 evening around 6.30 Pm that there is sale of ganja by an unknown person in the vacant right side empty place of Basapur Main Road, Chikkabeguru, Bengaluru. On receipt of the information he has made a detail report and registered a suo-moto case in Cr.No.162/2022 of Beguru PS for the offence punishable U/Sec.20(B) of NDPS Act against unknown person. Thereafter, as provided under the act he has sought permission of higher officer to conduct raid. After taking permission he along with panchas and staff had been to the spot and found the suspected person. On enquiry he has revealed his name and address. On personal search of the said person 1 Kg., 190 grams of ganja was found. The said ganja was seized under detail mahazar. The accused No.1 during interrogation has stated that he has purchased the ganja from one Akshay Bindani and Tapan Kumar of Odissa State. He is selling ganja to the public. The said ganja has CCH-33 Crl.Misc.No.8826/2022 been noted in PF No.82/2022. 20 plastic covers found in the possession of the accused No.1 was also seized. With a detail report, he is produced before the court and remanded to judicial custody.
8. Basing on the statement of the accused No.1, accused
Nos.2 and 3 were apprehended by the investigating agency. They were apprehended on 21.6.2022 at Subashnagar, near Nice road bridge, Basapura main road. The investigation officer has received the information that they are going to arrive to the same spot with contraband. He has constituted a raiding team, visited the spot and apprehended accused Nos.2 and 3. On conducting search of accused Nos.2 and 3, he has found 3 Kgs., 530 grams of ganja in their possession. The said ganja is seized under detail panchanama. They were arrested and produced before jurisdictional Magistrate and were remanded to judicial custody.
9. In the voluntary statement of accused Nos.2 and 3
they have revealed that accused No.4 Shaik Mastan is also involved in drug trafficking. On 26.6.2022 accused Nos.4 was apprehended at Koodlu gate, Hosur road. During search of accused No.4, 3 Kgs., of ganja was seized.
10. Basing on the voluntary statement of accused Nos.2
and 3 the investigating agency have apprehended accused Nos.5 to 8 on 26.6.2022 at Koodlu gate sub way. During interrogation accused Nos.2 and 3 revealed that accused No.4 is going to arrive at Koodlu gate along with the contraband. Basing on the said information the Investigation officer was waiting for the arrival of accused No.4 at Koodlu gate on 26.6.2022 in the evening. When accused No.4 has arrived to the spot he was apprehended and from his conscious possession 3 Kgs., of ganja was seized.
11. In the voluntary statement of accused Nos.2 and 3
they have revealed that they are acquainted with accused Nos.5 to 8. They are from Mysore and Kollegala. They were also supplying ganja to them. The said persons are going to arrive at Basava Circle, Beguru Koppa road, Hulimavu to sell the ganja. The investigating officer on ascertaining the said information has mounted surveillance in the said area on 30.6.2022. White Suzuki Ciyaz Car bearing KA 12 Z 6644 CCH-33 Crl.Misc.No.8826/2022 arrived to the spot. In the said car accused Nos.5 to 8 were found. On thorough search of the vehicle huge quantum of ganja is found. The total quantum of ganja seized from the conscious possession of accused Nos.5 to 8 is 36 Kgs., 854 grams which was found stored in the vehicle. The said accused persons were arrested and were brought to the police station. Their statements came to be recorded. Accused Nos.5 to 8 were taken to police custody. After further investigation in the matter they were produced to court and remanded to judicial custody. The total quantum of ganja seized in this case is 48 Kgs., 930 grams.
12. It is vehemently argued by the learned counsel for
the petitioner that the quantum of contraband seized from the present Petitioners are not commercial quantity, hence, they are entitled for bail. Search and seizure are vitiated by inherent procedural impropriety. The mandatory provisions of law have not been followed thereby causing serious doubt on the investigation, search and seizure procedure. 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. They are entitled for bail.
13. It is argued by the prosecution that the petitioners
have committed heinous offence and it is punishable with RI upto 20 years. The petitioners may involve in similar offence, if they are released on bail. There are primafacie material available against them.
14. On careful analysis of rival contentions and the
prosecution papers available on record. The investigating agency seized 48 Kgs., 930 grams of ganja under the seizure panchanama. 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 drug ganja 1000 grams is small quantity and 20 Kgs., is commercial quantity. In this case the quantum of ganja seized is 48 Kgs., 930 grams which is commercial quantity. CCH-33 Crl.Misc.No.8826/2022
15. It is to be appreciated that accused No.1 to 8 in
Cr.No.162/2022 were arrested on different dates. Accused No.1 was arrested on 17.6.2022 and 1 Kg., 190 grams of ganja was seized from his conscious possession. Accused Nos,.2 and 3 were arrested on 21.6.2022, 3 Kg., 530 grams of ganja was seized from them. Accused No,.4 was arrested on 26.6.2022 and 3 Kgs., of ganja was seized from him. Accused No.5 to 8 were arrested on 30.6.2022, 36 Kgs., 854 grams of ganja was seized from them as they were transporting ganja in the vehicle. Now, in the present bail petition, accused Nos.3 and 4 are seeking bail. As per the voluntary statement of accused no.1, accused Nos.2 and 3 were apprehended. Basing on the voluntary statement of accused Nos.2 and 3, accused No.4 is apprehended. The nexus between accused nos.1 to 4 with accused Nos.5 to 8 there is no convincing material placed by the investigating agency before this court at this stage. The present petitioners were apprehended with intermediate quantity of ganja. Therefore, while appreciating the bail plea of present petitioners this court cannot look into the entire quantum of ganja seized from the accused on different dates . The plea of each one of the accused to be considered separately as they were apprehended on different and with different quantum of contraband and further there is no material placed on record by the investigating agency to connect the present petitioners with the other accused.
16. 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. The said case law aptly applies to the case on hand in holding that the contraband seized from the present petitioner 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 petitioners is to be considered. CCH-33 Crl.Misc.No.8826/2022
17. The major portion of investigation in the case is
concluded as the incriminatory article is already seized from accused persons. The offence alleged against the petitioners is not punishable with death or imprisonment for life. Further custodial interrogation is not warranted. Their Voluntary 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.
18. 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.
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. They 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 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 27th day of September 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU. CN/*