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 20 th DAY OF SEPTEMBER 2022 Crl. Misc.No.8757/2022 Petitioner : Thaha Ummer, S/o.Ummar, (accused No.1) a/a 38 years, r/at Padikka mannil House, Koottilangadi, Malappuram, Kerala (By Sri AVN., Adv.) V/S. Respondent : State by Union of India Narcotics Control Bureau Bengaluru Zonal Unit, Through Intelligence Officer City Civil Court Complex Bengaluru (By Public Prosecutor) O R D E R The present petition U/Sec.439 of Cr.P.C., is filed by the petitioner to enlarge him on bail, in Cr.No.48/1/11/2022 of NCB., Bangalore registered for the offences punishable U/Sec.8(c) R/w.Sec.21 of NDPS Act.

2. The prevalent grounds urged seeking bail:-

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 offence is 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. If he is detained in the Central prison his career will be spoiled in the midst of the other criminals in the prison. 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 filed objection contending that the

present petitioner along with the accused No.2 in conspiracy has send various drugs to abroad on many times. The investigation in the case is in progress, some more persons are yet to be examined and reports and other relevant information CCH-33 3 Crl.Misc.8757/2022 is required to be obtained from various agencies and forensic lab. Though the IO., NCB has sent summons to the petitioner directing him to appear for investigation on 18.7.2022, 1.8.2022, 10.8.2022, he has failed to appear before the IO., NCB. On 24.8.2022 court summons was served on him. He appeared before IO on 24.8.2022. In his voluntary statement he has stated about the illicit drug trafficking. After recording his statement on the reasonable belief that he has committed the crime, he was put under arrest on 25.8.2022. The investigation is pending. If the petitioner is granted bail he may abscond and may tamper with the prosecution witnesses. He may involve himself in similar offences. Hence, sought to reject the bail plea of petitioner.

4. Heard learned counsel for the petitioner and the

prosecution.

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 gist of the allegation levelled in the

prosecution papers are as here under:­ On 7.5.2022 at about 10.30 hours IO., NCB has received credible information that a suspicious parcel bearing No.1826193810 laying at DHL Express (India) Pvt., Ltd., KIA., Bengaluru and suspected to be containing Clonazepam tablet which is covered under the NDPS Act. After getting necessary orders of superintendent, NCB., Bangalore Zonal Unit, IO., NCB formed a team along with DD kit and staff and been to the spot. When he has enquired about the suspected parcel bearing way bill No. 1826193810 it was placed before NCB team. The parcel was in the form of white colour polythene cover of DHL and was found to be from one Ajmal Nanath Valiyatt, s/o.Haris Nanath Valiyatt of Kerala and was addressed to Zainul Abid Mannan Paramban, Saudi Arabia. CCH-33 5 Crl.Misc.8757/2022 The suspected parcel was opened in the presence of independent witnesses. On opening the white coloured polythene cover it was found to be containing a small brown coloured carton box and mentioned on the box “purchased on amazon” in India's largest online store. On further opening the above said carton box it was found to be containing 6 nos., of bottles of Septilin tablets 60. All the bottles were having loose and unsealed lid. All the 6 bottles were manufactured by Himalaya Drug company. The net contents is 60 tablets. One bottles was opened and it was found to be containing 374 nos., of white coloured tablets of Rivotril. Other 5 bottles were opened and each bottles was found to be containing 374 nos., of tablets Rivotril. In all 2244 tablets found in the said bottles. All the tablets were put together into one transparent polythene zip lock cover and weighed. The weight of the entire substance came out to be 357 grams. The contains of Rivotril 2 is Clonazepam a psychotropic substance and it is prohibited in NDPS Act. All the tablets were seized. The polythene zip lock cover containing substance was wrapped with transparent coloured tape and transferred into a green colour paper envelop. The sample of the tablet was sent to CFSL., Hyderabad. The report also received by the NCB. As per the report in Ex.S1 sample Clonazepam has been detected. The report of CFSL is also available in the case record. The IO NCB after seizure of the parcel and receipt of the parcel has proceeded with the investigation and as per the prosecution papers the accused No.2 has booked the parcel. The accused No.2 is working under present petitioner. The accused No.2 is working as a sales man in the Aliya medical shop belonging to the petitioner. The present petitioner has taken the Aadhaar card of accused No.2 and has misused the Aadhar card of accused No.2 for dispatching the banned medicine Clonazepam tablet to foreign country through airways and he has booked the parcel in DHL Express India Pvt., ltd., courier bearing parcel way bill No.1826193810. The Aadhar card of accused No.2 and fake signature of accused No.2 was made by the present petitioner.

8. It is vehemently argued by the learned counsel for the

petitioner that petitioner is falsely implicated in the above case. The quantity seized from the possession of the accused is less CCH-33 7 Crl.Misc.8757/2022 than commercial quantity. The major portion of investigation is concluded. Custodial interrogation is not warranted. He is entitled for bail.

9. It is argued by the prosecution that the petitioner has

committed heinous offence and the drugs were seized from his custody. There are prima­facie material available against him.

10. I have carefully gone through the material placed on

record. As per the investigation papers, the IO., NCB has seized the parcel containing Clonazepam tablets 357 grams. The said parcel is booked by the present petitioner by using the Aadhar card of accused No.2. As per the investigation report the present petitioner has used the Aadhar card of accused No.2 and has forged the signature of accused No.2 and has booked the parcel of contraband. The name and address referred on the parcel shows the name of accused No.2. 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.189 the narcotic drug Clonazepam – weighing 05 grams is small quantity and 100 grams is commercial quantity. In the present case 357 grams of Clonazepam narcotic substance seized is a commercial quantity.

11. The NDPS Act provides deterrent punishment for

various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. At this stage, it is necessary for me to refer to 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. In the said case the Hon'ble Apex Court 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 CCH-33 9 Crl.Misc.8757/2022 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 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.”

11. 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; (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 co­ accused. 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. CCH-33 11 Crl.Misc.8757/2022 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 the 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 : "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 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 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 CCH-33 13 Crl.Misc.8757/2022 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 aforesaid 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, the petitioner herein being the owner of Aliya Medical stores has booked the Clonazepam tablets by misusing the Aadhar card of accused No.2 who is working in his medical shop. According to the investigation report the Aadhar card of accused No.2 was taken by present petitioner and the parcel does contain the address of accused No.2. At this stage, there is primafacie material available against the petitioner in regard to the booking of Clonazepam tablets which is to the tune of 357 grams. 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.

12. 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 20th day of September 2022] (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.