Crl.Misc. No.

5059/2023
1

KABC010139912023

In the Court of the XXXIV Additional City Civil and Sessions Judge and
Special Judge, (NDPS), (CCH - 35), Bengaluru

Dated this the 17 th day of June, 2023

Present :-

Sri. G.Raghavendra, B.Sc., LL.B.,

XXXIV Addl. City Civil & Sessions Judge and
Special Judge, (NDPS),
Bengaluru.

Crl.Misc. No.5059/2023

Petitioner: Sri. Manshannesheed

Aged about 37 years,
S/o Sri.Rayin,
R/at Kottakal (Village),
Mallapuram District,
Kerala State.
(Accused No.6)

(By Sri. Binu M, Advocate)

Vs.

Respondent: The State by

Ashok Nagar 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
 Crl.Misc. No.5059/2023
2

petitioner / accused No.6 to enlarge him on bail in Spl. CC No.898/2023

(Crime No.288/2022), registered by Respondent – Ashok Nagar Police
Station, Bengaluru City, for the offences punishable under Section 8(c),
20 (b) (ii) (B) and 22(c) of Narcotic Drugs and Psychotropic Substances
Act,1985 ('NDPS Act' for short) and Section 14 of Foreigners Act, 1946.

2) 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.6 satisfies

that there are reasonable grounds for believing that he is
not guilty of the 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.14, Sri. Basavaraj Angadi, Police Sub-Inspector(PSI), Ashok Nagar
police station, Bengaluru City, against accused Nos.1 to 7 for an offence
 Crl.Misc. No.5059/2023
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punishable under Sections 8(c) , 20(b) (ii) (B) and 22(c) of of NDPS Act
and Section 14 of Foreigners Act.

7) As per Section 22(c) whoever, in contravention of any

provision of NDPS Act or any rule or order made or condition of license
granted thereunder manufactures, possesses, sells, purchases,
transports, imports inter-state, exports inter-state or uses any
psychotropic substance which involves commercial quantity shall be
punishable with rigorous imprisonment for a term which shall not be less
than ten years but which may extend to twenty years and shall also be
liable to fine which shall not be less than one lakh rupees but which may
extend to two lakh rupees.

8) 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.

9) 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.”

10) The conditions for grant of bail in offences punishable under

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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
ones prescribed under Cr.P.C., which are to be satisfied before an
accused can be enlarged on bail.

11) 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.”

12) The petitioner in his petition has stated the following grounds
to show that he is entitled for bail, which reads as under:

i) The petitioner has been falsely implicated in the

case.

ii) As per the prosecution, it is alleged to have

recovered 60 grams of MDMA from accused Nos.4 to
6 on 05.10.2022 and accordingly drawn panchanama
on the spot. But there are no signatures of panchas
and accused on page Nos.1 to 5 and signatures on the
last page of the Amanathu Panchanama only. Hence,
the alleged seizure under the said panchanama is
doubtful.
 Crl.Misc. No.5059/2023
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iii) It is alleged 60 grams of MDMA is seized from

accused Nos.4 to 6 and the samples were drawn
before the Magistrate on 23.11.2022 after the lapse of
50 days, and the samples were received by the SFSL
on 3.12.2022, after lapse of 10 days from the date of
drawing the sample on 23.11.2022, the same is
against to Standing Order No.1029 issued by the
Police Department, Government of Karnataka. There is
a delay of 60 days and no written permission was
obtained from the concerned DCP. Hence, there is
serious violation of Standing Order No.1029 issued by
DG & IGP, Police Department, Karnataka State.

iv) The complainant had not obtained permission from

the Magistrate to send the seized contraband for FSL
verification. As per the certificate issued under Section
52(A) of the Narcotic Drugs and Psychotropic
Substances Act 1985, there is no signature and seal of
the learned Magistrate. As per the contents in the
certificate, the alleged sample was drawn on
16.3.2023. But as per the SFSL Acknowledgment, they
received the sample on 3.12.2022.

13) Perused the charge sheet. The case of the prosecution is

that on 3.10.2022 When C.W.1, Ashwini G.A., PSI, Ashok Nagar police
station, Bengaluru City, was in station at 9.10 p.m., she received a
credible information from an informant that at about 9.45 to 10.00 p.m., of
today, three persons will come in a Honda City White colour car bearing
No.KL-44 / F-4621 near Opera Circle, Residency road, within the limits of
 Crl.Misc. No.5059/2023
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Ashoknagar police station, by keeping narcotic drugs Ganja and MDMA

for the purpose of selling the same to public and college students.
Thereafter, C.W.1 has informed the information to C.W.12, Sri. Rajendra
D.S., Assistant Commissioner of Police (ACP), Cubbon Park Sub-
Division, Bengaluru, through written requisition and obtained written
permission to carry out the raid. Thereafter, C.W.1 has registered First
Information Report under Crime No.288/2022 against unknown for an
offence punishable under Sections 8(c), 20(b) (ii) (B) and 22(c) of of
NDPS Act.

14) Thereafter, C.W.1 called for C.W.2, Ganesh and C.W.3, Kumar
R panchas at 9.30 p.m. to police station and informed them about the
information she received and issued notice to them and requested to
assist as panchas. Thereafter, C.W.1 left the police station at 9.35 p.m.
along with panchas and staff after searching each other to confirm that
there were no narcotic drugs with them and reached the place at 9.40
p.m. After reaching the place they searched each other once again to
confirm that there were no narcotic drugs with them. While watching
secretly, C.W.1 saw three persons were sitting in Honda City car bearing
registration No.KL-44/F-4621 parked before Samsung Mobile showroom,
Opera circle and they encircled them and introduced herself to accused
and enquired as to their name and address. Accused Nos.1 to 3 stated
that they were having ganja and MDMA, which they purchased from
accused Nos.4 and 5. Thereafter, C.W.1 called for C.W.12, ACP to reach
the place. C.W.12, reached the place at 10.20 p.m. and thereafter
introduced himself to accused Nos.1 to 3 and informed accused Nos.1 to
3 about their right to search by a Magistrate or a Gazetted Officer and he
himself is a Gazetted Officer. C.W.12, issued questionnaires to accused
 Crl.Misc. No.5059/2023
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Nos.1 to 3 and obtained their consent signature about their search by

him. Thereafter, C.W.12, found 1 kg 100 grams of ganja and 5 grams of
MDMA from accused No.1, which he produced from dashboard of the car.
The C.W.12, seized ganja and MDMA under seizure mahazar between
10.00 p.m. to 11.30 p.m.

15) Thereafter, C.W.1 along with C.W.4 to 7, staff of Ashoknagar

police station has detained accused Nos.5 to 7 on 5.10.2022 at 10.00
a.m. in Toyota Corolla car bearing No.MH-04/BQ-1584 and produced
them before C.W.14 at 10.45 p.m.

16) Thereafter C.W.14, has called for C.W.2 and 3, panchas at

11.00 a.m. on 5.10.2022 and requested them to assist as panchas.
Thereafter, C.W.14 has requested C.W.12, ACP to conduct search of
person of accused Nos.5 to 7. C.W.12, ACP reached the station at 11.15
p.m. and informed accused Nos.5 to 7 about their right of search by a
Magistrate or a Gazetted Officer and he himself is a Gazetted Officer.
C.W.12, issued questionnaires to accused Nos.5 to 7 and obtained their
consent signature about their search by him. The C.W.12, seized 20
grams of MDMA each from accused Nos.5 to 7, which they produced
from the pocket of their pant under seizure mahazar between 11.15 a.m.
to 01.15 p.m.

17) 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, 0.5 grams of MDMA Ecstasy is specified as small quantity and 10
grams of MDMA Ecstasy is specified as commercial quantity. The MDMA
recovered in this case from the petitioner / accused No.6 is 20 grams of
 Crl.Misc. No.5059/2023
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MDMA. The MDMA recovered from accused Nos.5 to 7 together is 60

grams of MDMA.

18) In the requisition dated 5.10.2022 sent by C.W.14, I.O.

addressed to C.W.12, ACP the C.W.14 has requested C.W.12, ACP to
conduct search of person of accused Nos.6 and 7 as they stated that they
are having MDMA with them. It is pertinent to mention that in this
requisition, the I.O. has not stated as to whether he informed accused
Nos.5 to 7 about their right of search by a Magistrate or a Gazetted
Officer.

19) In the seizure mahazar dated 5.10.2022 also it can be seen

that the C.W.14, I.O. has not stated as to whether he informed accused
Nos.5 to 7 about their right of search by a Magistrate or a Gazetted
Officer.

20) Counsel for the petitioner has produced Standing Order

NO.1029, issued by Director General & Inspector General of Police,
Karnataka State on 02/11/2020, where in para No.1 reads as under:

“1. All the samples which require examination at FSL

should be sent to the FSL within 15 days of the seizure of the
samples by the Sub-divisional police officers/ units after
completing all legal formalities. In case of delay up to 30
days, the Superintendent of Police / DCP should personally
sign the forwarding letter to the FSL. The approval of the
Addl. Director General of Police, Crime & Technical Services
is to be obtained before sending samples to the FSL, in case
the delay is beyond 30 days from the date of seizure.”

21) The C.W.14, I.O. has sent a requisition to learned First MMTC
Court, Bengaluru city, on 23.11.2022 to conduct inventory as to seized
narcotic drugs, which is after 1 month and 17 days from seisure. Along
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with this requisition, the C.W.14, I.O. has annexed Annexure 1 – Inventory
of seized Narcotic Drugs, Psychotropic Substances, Controlled
Substances and Conveyances [Under Section 52(A) of the Narcotic
Drugs and Psychotropic Substances Act, 1985] and Annexure 2 –
Application for Disposal of seized Narcotic Drugs, Psychotropic
Substances, Controlled Substances and Conveyances [Under Section
52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985]. It is
pertinent to observe that Annexure - 2 was not signed by C.W.14, I.O.
The C.W.14, I.O. has also submitted Annexure – 2, Certification by the
magistrate under Section 52(A) of the Narcotic Drugs and Psychotropic
Substances Act, 1985, which is also not signed by the Magistrate.

22) The C.W.14, I.O. has sent the samples collected to SFSL,
Bengaluru city, for test by letter dated 2.12.2022. The SFSL, Bengaluru
City, has received the articles of this case for examination on 3.12.2022.
The SFSL has given its Test Report dated 25.1.2023. In this Test Report
at Method of Analysis, it is stated that 6 sealed cloth packets with the seal
impression “TCS”. But in the list of articles sent to FSL for examination,
the seal used is shown as “Court Seal”.

23) Counsel for the petitioner has produced the following

decisions :

(1) Bail Appln. 253/2023 (Judgment on 18.05.2023)(Kashif vs.

Narcotics Control Bureau), on the file of Hon'ble High Court of Delhi,
wherein His Lordship of Hon'ble High Court of Delhi in para No.16, 24,
25, has held as under:

“16. Guidelines prescribed in the Standing Orders

cannot be flouted and their substantial compliance must be
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insisted upon as observed in Noor Aga (supra). This court has

already held Standing Order 1/88 to be mandatory in the
judgment of Laxman Thakur vs. State in BAIL APPLN.
3233/2022 (2022/DHC/005591).

xxx xxx xxx

24. Hence, I am of the view that non-compliance of

section 52A within a reasonable time gives rise to the
apprehension that sample could have been tampered with and
in case of a wrongly drawn sample, the benefit of doubt has to
accrue to the accused. The prosecuting agency has to prove
at the time of trial that the sample was immune from
tampering.

25. In the present case, the sample was kept in the

custody of the prosecuting agency for more than one and a
half month, thus, raising doubt with regards to tampering of the
same.

xxx xxx xxx

28. What is reasonable time depends on the facts and

circumstances of each case. However, it cannot be the
intention of the legislature that an application for sample
collection can be moved at the whims and fancies of the
prosecuting agency. Therefore, taking cue from the Standing
Order 1/88, it is desirable that the application under 52A
should be made within 72 hours or near about the said time
frame.

29. In the present case, the application for drawing of

sample and certification of seizure memo under Section 52A
NDPS was filed on 22.04.2022 i.e., after 51 days from the
period of last seizure on 02.03.2022.

30. A period of 51 days, by no stretch of imagination,

can be called a reasonable period for filing an application
under section 52A NDPS for drawing the sample. It cannot be
that the contraband lying in the custody of the Narcotics
Department for 51 days, in their power and possession, is
immune from tampering and mischief. Furthermore, no
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reasons have been furnished by the Respondent for the delay

of 51 days for moving an application under Section 52A NDPS.

31. In view of the above discussion, I hold that

violation of Section 52A vitiates the sample collection
procedure and the benefit of the same must accrue to the
Applicant.”

(2) Criminal Petition No.563/2023 (Judgment on 03.02.2023)

(Kurva Ramesh vs. The State of Telangana) on the High Court of
Telangana.

(3) Criminal Appeal No.262/2006 (Judgment on 29.03.2011)

(State of Rajasthan vs. Tara Singh), wherein Their Lordships of Hon'ble
Supreme Court in para No.2 have held as under:

“2. ………………………………………………………
We find, however, that the second aspect on which the High
Court has opined calls for no interference. As per the
prosecution story the samples had been removed from the
Malkhana on the 26th of February, 1998, and should have been
received in the laboratory the very next day. The High Court
has, accordingly observed that the prosecution had not been
able to show as to in whose possession the samples had
remained from 26th February, 1998 to 9th March, 1998. The
High Court has also disbelieved the evidence of P.W.6 and
P.W.9, the former being the Malkhana incharge and the later
being the Constable, who had taken the samples to the
Laboratory to the effect that the samples had been taken out
on the 9th of March, 1998 and not on the 26th February, 1998.
The Court has also found that in the absence of any reliable
evidence with regard to the authenticity of the letter dated 26 th
February, 1998 it had to be found that the samples had
remained in some unknown custody from the 26 th February,
1998 to 9th March, 1998. We must emphasise that in a
prosecution relating to the Act the question as to how and
where the samples had been stored or as to when they had
dispatched or received in the laboratory is a matter of great
importance on account of the huge penalty involved in these
 Crl.Misc. No.5059/2023
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matters. The High Court was, therefore, in our view, fully

justified in holding that the sanctity of the samples had been
compromised which cast a doubt on the prosecution story.
We, accordingly, feel that the judgment of the High Court on
the second aspect calls for non interference. …………………..”

(4) Criminal Appeal No.1034/2008(Arising out of SLP(Crl.)

No.5597/2006) (Noor Aga vs. State of Punjab and another), wherein Their
Lordships of Hon'ble Supreme Court in para No.17 have held as under:

“17. … … Recently this Court in State of Kerala

& Ors. v. Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582],
following the earlier decisin of this Court in Union of India v.
Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory
instructions are mandatory in nature. Logical corollary of
these discussions is that the guidelines such as those present
in the Standing Order cannot be blatantly flouted and
substantial compliance therewith must be insisted upon for so
that sanctity of physical evidence in such cases remains
intact. Clearly, there has been no substantial compliance of
these guidelines by the investigating authority which leads to
drawing of an adverse inference against them to the effect that
had such evidence been produced, the same would have
gone against the prosecution.”

24) The facts and circumstances of the decisions furnished by

the counsel for petitioner are squarely applicable to this case.

25) In view of the discussion, I made above, I come to an opinion

that, petitioner / accused No.6 is able to satisfy that there are reasonable
grounds for believing that he is not guilty of the alleged offence. Hence, I
answer point No.1 in the Affirmative.

26) Point No.2:- In view of the answer, I arrived to point No.1, I

proceed to pass the following:-
 Crl.Misc. No.5059/2023
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ORDER

The Criminal Miscellaneous Petition under Section 439 of Code of

Criminal Procedure, 1973 filed by Petitioner / Accused No.6 is allowed.

The Petitioner / Accused No.6 is enlarged on bail on execution of

personal bond of Rs.1,00,000/- (Rupees One Lakh), along with two
sureties for the like sum in Spl. CC No.898/2023 (Crime No.288/2022),
registered by Respondent – Ashok Nagar Police Station, Bengaluru City,
for the offences punishable under Section 8(c), 20 (b) (ii) (B) and 22(c) of
Narcotic Drugs and Psychotropic Substances Act,1985 and Section 14 of
Foreigners Act, 1946 on the following conditions:

(1) The Petitioner / Accused No.6 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.6 shall regularly appear before the
court.

(3) The Petitioner / Accused No.6 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.6

would entail cancellation of bail.

(Dictated to the Judgment Writer partly and also directly on computer, typed by him,
corrected, signed and pronounced in the open court on this the 17th day of June,
2023). Digitally signed by
RAGHAVENDRA RAGHAVENDRA G
G Date: 2023.06.21
12:11:06 +0530
(G. Raghavendra)
XXXIV Addl. City Civil & Sessions Judge
& Special Judge (NDPS), Bengaluru.