Crl.Misc. No.2930/2024 KABC010082632024 In the Court of the XXXIV Additional City Civil and Sessions Judge and Special Judge, (NDPS), (CCH -35), Bengaluru Dated this the 28th 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.2930/2024 Petitioner/ Bikasha Panda, Accused No.4: S/o Vinayaka panda, Age: 21 years, Bandagonda Grama K, Nuvugoshak Block, Kendrapara, Orissa (By Sri. Tilak Raj M., Advocate) Vs. Respondent: The State of Karnataka by Konankunte 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 / Crl.Misc. No.2930/2024 Accused No.4 to enlarge him on bail in Spl.C.No.441/2024 (Crime No.553/2023) registered by Respondent – Konankunte Police Station, Bengaluru City, for the offences punishable under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act,1985 ('NDPS Act' for short). 2) The Learned Public Prosecutor has filed an 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.4 satisfies that there are reasonable grounds for believing that he is not guilty of an alleged offence 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: Already Charge-sheet has been submitted by C.W.10, Sri. Suhas N.R., Police Sub-Inspector, Konanakunte Police Station, Bengaluru City against accused Nos.1 to 4 for an offence punishable under Section 20(b)(ii)(C) of NDPS Act. Crl.Misc. No.2930/2024 7) Perused the certified copy of the documents produced by the petitioner along with this criminal miscellaneous petition and also perused the charge sheet and the documents submitted along with the charge sheet. That on 31.12.2023, at 11:00 a.m., when C.W.1, Sri. Arunkumar, Police Sub-Inspector, Konanakunte Police Station, Bengaluru City was in station he has received a credible information from the informer that near Gottigere Toll, Nice Road within the limits of Konanakunte Police Station four persons by keeping four plastic bags filled with ganja are trying to sell the ganja. Thereafter, C.W.1 prepared a report and registered a first information report under crime No.553/2023 against four unknown persons for the offence punishable under section 20(b)(ii)(C) of N.D.P.S. Act. 8) That on the same day at 12.00 noon, C.W.1 called for C.W.2, Sri. Prasad Kumara and C.W.3, Sri. Sabarisha to Police Station and informed them about the information that he received, prepared record of reasons and issued notice requesting them to assist as panchas. Thereafter C.W.1, C.W.2, C.W.3, C.W.4, Sri. Narendra Babu, H.C.7967, C.W.5, Sri. Mohana H.C.8743, C.W.6, Sri. Kallesh Murthy, H.C.859 and C.W.7, Sri. Siddaraju, H.C.9230 searched each other to see that there were no narcotic drugs with them and left the Police Station at 12:30 p.m. along with investigating materials and reached near the place at 01:00 p.m. At the place, C.W.1 and others saw four persons by parking a two wheeler were observing the vehicles passing on the road by keeping white color bags and they tried to run away by seeing C.W.1 and others. After detaining the said four persons C.W.1 introduced himself by showing his identity card. On enquiry said four persons revealed their name and address and stated that there is ganja leaves in four plastic bags. On enquiry they further stated that seized ganja is from the forest of Crl.Misc. No.2930/2024 Odisha. Thereafter, C.W.1 weighed the four plastic bags separately along with ganja and found totally 35 kgs 750 grms of ganja. Thereafter C.W.1 seized 35 kgs 750 grams of ganja and other articles from the possession of accused Nos.1 to 4 under seizure mahazar between 1.30 p.m. to 3.00 p.m. 9) Thereafter, further investigation was conducted by C.W.10 and after the completion of the investigation C.W.10 has filed the charge sheet. 10) The Petitioner in his petition has stated the following grounds to show that he is entitled for bail. i) The petitioner is innocent and has not committed any offence as alleged and has been falsely implicated in the case. ii) The respondent police have recovered 35 kg 750 grams ganja from all the accused in 4 bags. Each bag contains 8 to 10 kgs of ganja in the bags. The respondent police are trying to show that the petitioner and other 3 accused are carrying the commercial quantity of ganja from them to deprive their right of Bail. iii) Already bail was granted to accused No. 1 to 3 in Crl. Misc No.2484/2024 and Crl. Misc No. 2613/2024. The petitioner also may be released on bail on the same conditions. 11) In specification of the small and commercial quantity of Narcotic Drug or Psychotropic Substance, SO 1055 (E), dated Crl.Misc. No.2930/2024 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 kgs of ganja is specified as commercial quantity. The ganja recovered in this case from accused Nos.1 to 4 together is 35 kgs 750 grams, which is commercial quantity. 12) Section 37 of NDPS Act, mandates that no person accused of offences punishable for offences under Section 19 or Section 24 or Section 27A 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. 13) 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.” 14) 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 preconditions are imposed upon the accused in addition to the ones prescribed under Cr.P.C, which are to be satisfied before an accused can be enlarged on bail. 15) The Hon'ble Supreme Court of India in a decision reported in Crl.Misc. No.2930/2024 (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.” 16) The counsel for petitioner/accused No.4 has reiterated the grounds stated in the petition. The counsel for petitioner / Accused No.4 further argued that the petitioner is entitle for bail for the reason that the Investigation Officer has not submitted the application for certification of inventory as per Section 52A of NDPS Act without any delay and also has not submitted the samples for examination without any delay. The counsel for petitioner also brought to the notice of the court the date when the Investigation Officer has submitted PF No.218/23 dated 31.12.2023 to concerned magistrate. The Investigation Officer has submitted PF No.218/23 dated 31.12.2023 to concerned magistrate on 3.01.2024 after lapse of 2 days from the seizure of 35 kgs 750 grams of ganja under seizure mahazar dated 31.12.2023. By perusal of the charge-sheet it can be seen that 2nd ACMM, Bengaluru has issued certification as to inventory on 24.1.2024 after lapse of 23 days from the seizure of 35 kgs 750 grams of ganja under seizure mahazar dated 31.12.2023. acknowledgment issued by SFSL, Bengaluru submitted along with charge-sheet shows that samples were received on 29.1.2024 after lapse of 4 days from inventory. The Investigation Officer has not produced the alleged seized ganja 35 kgs 750 grams before the concerned magistrate for certification of Crl.Misc. No.2930/2024 inventory and drawing of representative samples as per Section 52A of NDPS Act without any delay. 17) The prosecution in the objection filed to this criminal miscellaneous petition has contended that if accused No.4 is released on bail, he may commit the similar offences, tamper with the prosecution witnesses and may not appear before the court. Accused No.4 is from Odisha State. I am of the opinion that the objections of prosecution can be met by imposing conditions as stated in Section 437(3) of Cr.P.C. In view of the discussion, I made above, 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 under Section 439 of Code of Criminal Procedure, 1973 filed by Petitioner/ accused No.4 is allowed. The Petitioner/ accused No.4 is enlarged on bail on execution of personal bond of Rs.1,00,000/- (Rupees One Lakh) each, along with one surety for the like sum in Spl.C.No.441/2024 (Crime No.553/2023) registered by Respondent – Konankunte Police Station, Bengaluru City, for the offences punishable under Section 20(b)(ii)(C) of NDPS Act, 1985 on the following conditions:

1. The Petitioner/ accused No.4 shall not directly or indirectly make

any inducement, threat or promise to any person acquainted with the facts of the case.

2. The Petitioner/ accused No.4 shall regularly appear before the Crl.Misc. No.2930/2024

court.

3. The Petitioner/ accused No.4 shall not commit any offences similar

to the offences of which he is accused or any other offences.

4. Breach of any of the conditions by the Petitioner/ accused No.4

would entail cancellation of bail. (Dictated directly to the Stenographer on computer, after typed by her, corrected, signed and pronounced in the open court on this the 28th day of March, 2024). Digitally signed by RAGHAVENDRA RAGHAVENDRA G G Date: 2024.03.30 09:42:58 +0530 (G. Raghavendra) XXXIV Addl. City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru.