Crl.Misc. No.2809/2024 KABC010078522024 In the Court of the XXXIV Additional City Civil and Sessions Judge and Special Judge, (NDPS), Bengaluru Dated this the 30th day of March, 2024 Present :- Sri. G.Raghavendra, B.Sc., LL.B., XXXIV Addl. City Civil & Sessions Judge and Special Judge, (NDPS), Bengaluru. Crl.Misc. No.2809/2024 Petitioner/ RAVI. M, Accused S/o Manjunatha, No.2: Aged about 29 years, R/at No.389, 2nd Main, 5th Cross, Krishnappa Nagar, Halanayakanahalli, Bengaluru -560035. (By Smt. Meenakshi H. V. Advocate) Vs. Respondent: The State of Karnataka, By Inspector of Excise, Surjapura Range, Bengaluru. (By Public Prosecutor)

ORDER

1) This Criminal Miscellaneous Petition under Section 438 of Code of Crl.Misc. No.2809/2024 Criminal Procedure, 1973 ('Cr.P.C.' for short) is filed by petitioner / Accused No.2 to release him on bail in the event of his arrest in Crime No.32/2023-24/4309SIE1/430909 registered by Respondent – Excise Sub-Inspector, Range-51 (Surjapura), Sub-division 16, Bengaluru Urban District-8, against accused Nos.1 and 2 for the offences punishable under Sections 20(b)(ii)(A), 61 & 8(c) of Narcotic Drugs and Psychotropic Substances Act,1985 ('NDPS Act' for short). 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/Accused No.2 and learned Public Prosecutor, the following points arise for my consideration: Point No.1: Whether petitioner/ Accused No.2 shows reason to issue an interim order/ direction for grant of anticipatory 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.2809/2024 These documents reveal that on 05.03.2023 at 6:30 p.m. when Sri. Sandeep S.R., Excise Sub-Inspector (ESI), Range -51(Sarjapura), Sub- Division-16, Bengaluru Urban District-08 was patrolling within the limits of Gattahalli village he received a credible information from the informer through phone that opposite to Sri. Veeranjaneya Temple, Chikkanayakana Halli, Varthoor Hobali, Bengaluru East Taluk, a person speaking Hindi language is selling ganja in a small packets to local customers. Thereafter ESI reduced the information into writing and informed his higher officers, Excise Inspector, Range-51(Sarjapura) and Excise Deputy Superintendent, Sub Division-16 through phone and obtained permission. Thereafter, on the way ESI called for two panchas who were standing at Chathrimara Dinne Circle and informed them about the information the he received and issued notice requesting them to assist as panchas. After consent of panchas ESI along with panchas reached near Shri.Veeranjaneya Temple. While watching ESI saw a person sitting on the Peepal tree platform before the temple and waiting for somebody and after some time a person came and the person who was sitting on the Peepal tree platform called him and gave a plastic cover. Thereafter ESI and others encircled said two persons and informed them about the information received and instructed them to open the plastic cover. ESI prepared record of reasons for search at the place as per Sec 42 of NDPS Act and obtained signatures of panchas. ESI and others searched each other to see there were no articles related to the information and received a black color plastic cover from the said persons. ESI found 33 small packets in plastic cover and after weighing the plastic covers including the substance in the plastic covers ESI found 230 grams of dry ganja. On enquiry said persons revealed their name and address. Accused No.2 further stated that he has been receiving ganja Crl.Misc. No.2809/2024 from accused No.1 often and consuming the same. Thereafter ESI gave notice under section 41-A of Cr.P.C to accused Nos.1 and 2 for their appearance before him for further investigation as seized quantity of ganja was small quantity. 7) Thereafter ESI seized ganja under seizure mahazar. Thereafter ESI returned to his office and registered first information report under crime No.32/2023-24/4309SIE1/430909 against accused Nos.1 and 2 under section 20(b)(ii)(A)(61)8(c) of NDPS Act. 8) The Petitioner in this petition has urged the following grounds: i) The Petitioner is innocent of the alleged offence and he has falsely implicated in the case. ii) That the alleged offence is not exclusively punishable with death/imprisonment for life. iii) That the alleged recovery of the ganja is too small quantity and the same is not commercial one. iv)That the respondent police are making hectic efforts to arrest the petitioner and are watching his whereabouts. There is serious apprehension that at any moment the petitioner would be arrested and put to untold hardship. 9) Petitioner has filed this Criminal Miscellaneous petition under Section 438 of Cr.P.C to release him on bail in the event of his arrest in this case. Section 438 of Cr.P.C. reads as under: Crl.Misc. No.2809/2024 “ 438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non -bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; ……………………………………………………………………………”. As per Section 438 of Cr.P.C., this court can issue direction to concerned police for release on bail of the person who has reason to believe that he may be arrested on accusation of having committed a non -bailable offence. 10) 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.55, 1000 grams of ganja is specified as small quantity and 20 kg of ganja is specified as commercial quantity. The ganja recovered in this case from accused Nos.1 and 2 together is 230 grams, which is small quantity. 11) As per Section 20(b)(ii)(A) of NDPS Act, whoever, in contravention of any provision of NDPS Act or any rule or order made or condition of license granted thereunder produces, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter- state or uses cannabis which involves small quantity shall be punishable with rigorous imprisonment for a term which may extend to one year, or Crl.Misc. No.2809/2024 with fine, which may extend to Ten Thousand rupees, or with both. 12) Section 36A of NDPS Act is related to the trial of NDPS offences by special courts, which reads as under: “36A. Offences triable by special courts (1) all offences under this Act which are punishable with imprisonment for a term of more than 3 years shall be triable only by the special court constituted for the area in which the offence has been committed or where there are more special courts than one for such area, by such one of them as may be specified in this behalf by the Government;”. 13) Section 37 of NDPS Act reads as under: “37. Offences to be cognizable and non-bailable;” As per Schedule II. Classification of offences against other laws if the offence is punishable with imprisonment for less than three years or with fine only the offence is non cognizable, bailable and triable by any magistrate. 14) By combine reading of 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, Section 36A of NDPS Act, Section 37 of NDPS Act and Schedule II. Classification of offences against other laws it is clear that the offence alleged against accused Nos.1 and 2 in this case is non- bailable and shall be triable by any magistrate. 15) The ESI has issued notice under section 41-A of Cr.P.C to Crl.Misc. No.2809/2024 accused Nos.1 and 2 for their appearance before him for further investigation as seized quantity of ganja was small quantity. The petitioner/ accused No.2 in this petition has stated that the respondent police are making hectic efforts to arrest him, are watching his whereabouts and there is serious apprehension that at any moment he would be arrested. 16) The prosecution in the objection filed to this criminal miscellaneous petition has contended that if the accused No.2 is released on anticipatory bail, he may commit the similar offences, tamper with the prosecution witnesses and may not appear before the court. I am of the opinion that the objection of prosecution can be met by imposing conditions as stated in Section 437(3) of Cr.P.C. 17) In view of the discussion, I made above, I come to an opinion that, petitioner/ Accused No.2 is able to show reason to issue an interim order/ direction for grant of anticipatory bail. I 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:- O R D E R The Criminal Miscellaneous Petition U/Sec.438 of Cr.P.C filed by the petitioner/ Accused No.2 is allowed. The petitioner / Accused No.2 is entitled to be released on bail in the event of his arrest in Crime No.32/2023- 24/4309SIE1/430909 registered by Respondent – Excise Sub-Inspector, Range-51 (Surjapura), Sub-division 16, Bengaluru Urban District-8, against accused Nos.1 and 2 for Crl.Misc. No.2809/2024 the offences punishable under Sections 20(b)(ii)(A), 61 & 8(c) of NDPS Act, subject to following conditions.

1. The petitioner/Accused No.2 is directed to appear

before the Investigation Officer within 15 days from the date of this order.

2. On appearance of the petitioner/ Accused No.2, he

shall be released on bail on his furnishing a personal bond for a sum of Rs.10,000/- with one surety for the like sum to the satisfaction of the I.O.

3. The petitioner / Accused No.2 shall not threaten or

try to tamper with the prosecution witnesses in any manner.

4. The petitioner/ Accused No.2 shall not leave the

jurisdiction of the court without prior permission. (Dictated to the Stenographer, typed by her, corrected, signed and pronounced in the open court on this the 30th day of March, 2024). Digitally signed by RAGHAVENDRA RAGHAVENDRA G G Date: 2024.04.01 10:31:57 +0530 (G. Raghavendra) XXXIV Addl. City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru.