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 22th DAY OF August 2022
Crl.Misc.No.7670/2022
Petitioner :
(accused No.1)
Vijay, S/o. Dakshinamurthy, Aged
about 20 years, No.1, Basavalingappa
nagara, K.G. Nagara, Arabic College
post, Bangalore.
(By Sri.MKV. Adv.)
V/S.

Respondent :
State by Excise PS BUD ­02,
Banaswadi Range
Bengaluru
(By Reptd Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner
to
enlarge
him
23/37091E/370909 of Excise
on
bail,
in
Cr.No.1/2022­
Banaswadi Range, registered
for the offence punishable U/Sec.20(B)(ii)(a), 22, 8(c) of NDPS
Act.

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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 no knowledge of alleged crime and
falsely implanted at the instance of extraneous elements. The
mandatory provisions U/s.50 of NDPS Act has not been
complied.

There are no eye witnesses who speak about the
sale of alleged contraband. Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. 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 183 grams of ganja &
2.22 grams of MDMA crystal drugs from the possession of the
accused. The accused is found to be in possession of narcotic
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CCH­33
Crl.Misc.No.7670/2022
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:
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REASONS
7. POINT NO.1:­ A report submitted by Excise Inspector
who is the complainant in this case before the Excise PS
Banaswadi Range PS.

The contents of the report is as here
under:­
On
25.07.2022
at
about
12.45
pm.,
when
the
complainant was discharging his duties he received credible
information that a person is selling drugs at Harris Med and
General Store’s, opposite Rasheed nagar main road, near
Arabic College, AC Post, Bangalore. After receiving the
information he along with panchas and staff went to the spot
and mounted surveillance and apprehended the accused. On
enquiry he revealed his name and address. On personal search
and bag search of said person they seized 183 grams of ganja
and 2.22 grams of MDMA crystal. The said contraband is
seized from his possession under a detail mahazar. Accused is
arrested. Thereafter, a detail seizure panchanama was drawn.
A detail report was prepared and submitted before Excise
Inspector. Basing on the report, a case in Cr.1/2022­23 is
registered for the offence punishable U/s.20(b)(ii)(a), 22 and
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8(c) of NDPS Act.

CCH­33
Crl.Misc.No.7670/2022
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 Sec.41, 42, 50, 52 and
47 of the Act are not complied. He is permanent residents 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 183 grams of
ganja and 2.22
grams of MDMA is seized from the petitioner and other
accused. The offence punishable with imprisonment upto 10
years and with fine. There are prima­facie material available
against them.

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10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
25.7.2022 complainant has conducted raid and apprehended
accused. On looking to the seizure panchanama the drugs
seized from accused is weighing 183 grams of ganja & 2.22
grams of MDMA. 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 183
grams of ganja is small quantity. As per Sl.No.134 ­the
narcotic drug – MDMA 0.5 grams is small quantity and 10
grams is commercial quantity. In the present case 2.22 grams
of MDMA seized 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
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CCH­33
Crl.Misc.No.7670/2022
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 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
183 grams of ganja & 2.22 grams of
MDMA 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. Further
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custodial
interrogation
is
not
warranted.

His
Voluntary
statement is already recorded. As per the information provided
by the petitioner he is permanently residing in the address
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.

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CCH­33
Crl.Misc.No.7670/2022
4.

He shall co­operate
investigation.

with
I.O
for
5.

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

6.

He shall furnish his photo ID proof and
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 22th day of August 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.