Crl.Misc. No.495/2023
1
In the Court of the XXXIV Additional City Civil and Sessions Judge and
Special Judge, (NDPS), Bengaluru
Dated this the 25 th day of January, 2023
Present :Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge and
Special Judge, (NDPS),
Bengaluru.
Crl.Misc. No.495/2023
Petitioner:
Tejas K.C. @ Tiger,
S/o Rajanna,
Aged about 28 years,
R/at No.1224,2nd Main,
Kasturi Layout, Kamalanagara,
Bengaluru – 560 032.
Permanent address:
Amruthuru village,
Kunigal taluk, Tumkur District.
(Accused No.1)
(By Sri. Manu B.S, Advocate)
Respondent:
State of Karnataka
by Rajagopalanagara Police Station,
Bengaluru.
(By Public Prosecutor)
ORDER
1)
This Criminal Miscellaneous Petition under Section 439 of
Code of Criminal Procedure, 1973 (‘Cr.P.C.’ for short) is filed by
petitioner / Accused No.1 to enlarge him on regular bail in Crime
Crl.Misc. No.495/2023
2
No.433/2022 registered by Respondent – Rajagopalanagara Police
Station, Bengaluru City, for the offences punishable under Sections
25(1b) (B) of Arms Act, Section 22(c) of Narcotic Drugs and Psychotropic
Substances Act,1985 (‘NDPS Act’ for short) and Section 379 of The
Indian Penal Code, 1860.
2)
Learned Public Prosecutor has filed objection to this criminal
miscellaneous petition.
3)
Heard the Counsel for petitioner and learned Public
Prosecutor.
4)
On the basis of contents of the petition, contentions taken in
the objection filed to this application and on the submission of both the
Counsel for petitioner and learned Public Prosecutor, the following points
arise for my consideration:
Point No.1: Whether petitioner / Accused No.1 satisfies that
there are reasonable grounds for believing that he is not
guilty of offence alleged and he is not likely to commit any
offence while on bail?
Point No.2: What Order?
5)
My answer to the above points are as under:
Point No.1: In the Affirmative.
Point No.2: As per the final order for the following:
REASONS
6) Point No.1:
Perused
the
certified
copy
of
documents
produced by the petitioner along with this criminal miscellaneous petition.

Crl.Misc. No.495/2023
3
These documents reveal that on 11.12.2022 at 7.00 p.m. when
Sri.Raghupathy, Police Sub-Inspector, Rajagopalanagara police station,
was in police station has received a information that one of four accused
in a case registered under FIR No.433/2022 under Sections 25 (1b) of
Arms Act registered at Rajagopalanagar police station on 11.12.2022 at
10.45 a.m., is near Hussain Bike Point of GKW Layout. Thereafter, I.O.,
went to the spot at 7.10 p.m. along with staff and detained accused No.1
who was with a stolen bike. After enquiry accused No.1 revealed that
there is MDMA Crystal in the black plastic cover kept in the bike.
Thereafter, the I.O., has secured the panchas and seized 50.52 grams of
MDMA crystal from accused No.1 before Panchas.
7) The petitioner has contended that the complainant police have
falsely implicated him and he was not at all present in the spot. The
accused Nos.2 and 4 of this case are already enlarged on bail in this
case.
8) In specification of the small and commercial quantity of Narcotic
Drug or Psychotropic Substance, SO 1055 (E), dated 19.10.2021 as
amended, issued by the Central Government at Serial No.134, 10 gram
of MDMA, Ecstacy/ MDMA Crystal is specified as commercial quantity.
The contraband seized from the petitioner / accused No.1 is 50.52 grams
of MDMA Crystal, which is of commercial quantity.
9) Section 37 of NDPS Act, mandates that no person accused of
offences punishable for offences under Section 19 or Section 24 or
Section 27 and also for offences involving commercial quantity shall be
released on bail, unless the court satisfied that there are reasonable
grounds for believing that accused is/are not guilty of such offences and
that accused is/are not likely to commit any offences while on bail.

Crl.Misc. No.495/2023
4
10)
Section 37(2) of NDPS Act, reads as under:
“37.

Offences to be cognizable and non-bailable
(1)
xxxx xxx
(2)
The limitations on granting of bail specified in clause (b)
of sub-section (1) are in addition to the limitations under the
Code of Criminal Procedure, 1973(2 of 1974) or any other law
for the time being in force, on granting of bail.”
11) The conditions for grant of bail in offences punishable under
Section 19 or Section 24 or Section 27A and also for offences involving
commercial quantity are differ from the general rule of bail. Two additional
pre conditions are imposed upon the accused in addition to the once
prescribed under Cr.P.C, which are to be satisfied before an accused can
be enlarged on bail.
12) The Hon’ble Supreme Court of India in a decision reported in
(2007) 7 SCC 798 (Union of India vs. Shiva Shanker Kesari) at para No.7
has opined as under:
“7.
The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means something more
than prima facie grounds. It connotes substantial probable
causes for believing that the accused is not guilty of the offence
charged and this reasonable belief contemplated in turn points
to existence of such facts and circumstances as are sufficient in
themselves to justify recording of satisfaction that the accused
is not guilty of the offence charged.”
13)
As per the investigation papers of this case, the I.O., has no
prior information about possession of prohibited MDMA crystal with
accused No.1.

The I.O., came to know about possession of MDMA
Crl.Misc. No.495/2023
5
crystal with accused No.1, only when he went to apprehend one of the
accused of Crime/FIR No.433/2022, which was registered on 11.12.2022
at Rajagopalanagar police station under Section 25(1b) (B) of Arms Act.
14)
Section 50 of NDPS Act, reads as under:
“50. Conditions under which search of persons shall be
conducted
(1)
When any officer duly authorised under section 42 is
about to search any person under the provisions of section 41,
section 42 or section 43, he shall, if such person so requires,
take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in section
42 or to the nearest Magistrate.
(2)
If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3)
The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no reasonable
ground for search, forthwith discharge the person but otherwise
shall direct that search be made.
(4)
No female shall be searched by anyone excepting a
female.
(5)
When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without
the possibility of the person to be searched parting with
possession of any Narcotic Drug or Psychotropic Substance, or
controlled substance or article or document, he may, instead of
taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under
section 100 of the Code of Criminal Procedure, 1973 (2 of
1974)
(6)
After a search is conducted under sub-section (5), the
officer shall record the reasons for such belief which
necessitated such search and within seventy-two-hours send a
copy thereof to his immediate official superior.”
Crl.Misc. No.495/2023
6
15)
When accused No.1 has revealed that he is having
possession of MDMA crystal, I am of the opinion that the I.O., ought to
have followed the procedure as mandated under Section 50 of NDPS Act.
No investigation papers are produced to show the I.O., has followed SubSection (5) and (6) of Section 50 of NDPS Act.
16)
In a decision Abu Thahir. B @ Abdu Vs Union of India on
11th October, 2017, his Lordship of Hon’ble High Court of Karnataka, at
para No.17 has held as under:
“17. Though this court is of the opinion that there cannot be
any tentative opinion with regard to the compliance of section
50 of the act or not, nevertheless as noted above, section 41
and 42 of the act, have not been strictly complied with by the
respondent. Therefore, in view of the decision, reported in
(2004) 12 SCC 266 cited above, even at the time of
considering the bail petition, the court has to examine the strict
compliance of the mandatory provision if the same has not
been compiled with, in such an eventuality, the rigor of section
37 of the act cannot be invoked for the purpose of rejecting the
bail”
17)
The prosecution in the objection filed to this criminal
miscellaneous petition has contended that if accused No.1 is released on
bail, he may commit the similar offences, tamper the prosecution
witnesses and may not appear before the court. The prosecution has not
objected the bail application on the reason that accused No.1 is involved
in similar offences or in any other case. I am of the opinion that the
objections of prosecution can be met with by imposing conditions as
stated in Section 437(3) of Cr.P.C.
In view of the discussion, I made above, I am of the opinion that,
petitioner / Accused No.1 is able to satisfy that there are reasonable
grounds for believing that he is not guilty of offence alleged. Hence, I
Crl.Misc. No.495/2023
7
answer point No.1 in the Affirmative.
18)
Point No.2:- In view of the answer, I arrived to point No.1, I
proceed to pass the following:Order
The Criminal Miscellaneous Petition under Section 439 of Code of
Criminal Procedure, 1973 filed by petitioner / Accused No.1 is allowed.
The petitioner / accused No.1 is enlarged on bail on execution of
personal bond of Rs.1,00,000/- (Rupees One Lakh),
sureties
along with 2
for the like sum in Crime No.433/2022 of Rajagopalanagara
Police Station, Bangalore, for the offences punishable under Section
25(1b) (B) of Arms Act, Section 22(c) of NDPS Act, 1985 on the following
conditions:
(1)
The Petitioner/Accused No.1 shall not tamper the witness or
abscond.

(2)
The Petitioner/Accused No.1 shall appear before the I.O.,
when ever he is called for.

(3)
The Petitioner/Accused No.1 shall regularly appear before
the court.

(4)
The Petitioner/Accused No.1 shall not commit any offences
similar to the offences of which he is accused.

(5)
The Petitioner/Accused No.1 shall not leave the jurisdiction
of this court.

Crl.Misc. No.495/2023
8
(6)
Breach of any of the conditions by the Petitioner/Accused
No.1 would entail cancellation of bail.

(Dictated to the Judgment Writer directly on computer, typed by him, corrected, signed and
pronounced in the open court on this the 25th day of January, 2023).

RAGHAVENDRA
G
Digitally signed by
RAGHAVENDRA G
Date: 2023.01.27 15:05:03
+0530
(G. Raghavendra)
XXXIV Addl. City Civil & Sessions Judge
& Special Judge (NDPS), Bengaluru.