Bangalore District Court
Syed Abu Thahir vs State By Ncb on 11 February, 2022
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 11 th DAY OF FEBRUARY 2022
Crl. Misc.No.855/2022
Petitioner : Syed Abu Thahir, 29 years, s/o.Ayub
(accused) Khan, R/at.4/1, Muktharunnisa
Begam Street, 3rd Lane Anna Salai,
Chennai, Tamilnadu 600 002.
(By Sri BJ., Adv.)
V/S.
Respondent : State by NCB
(By Spl.Public Prosecutor)
OR 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.48/1/14/2021/BZU
of NCB., registered for the offences punishable U/Sec.9A, 25A,
28 & 29 of N.D.P.S. Act.
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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. There is no connection or active part played
by this petitioner. The procedure contemplated under N.D.P.S.
Act not followed while recovery. The voluntary statement of
petitioner recorded after two months of the seizure effected in
the case. He has stated that he is a driver by profession. He
has requested one fizal for financial help. He is ignorant of the
seized drug. He has no acquaintance with any person in
Karnataka, Maharashtra or Australia. Further the seized
substance is not a narcotic drug but it is a controlled
substance. Further the investigation in the case is concluded
and Charge sheet is submitted. He is having no criminal
antecedents and is permanent resident in the address as
shown in the cause title. The petitioner is ready and willing to
abide by any conditions imposed by this court in the event of
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grant of bail. He is ready to offer surety for his due appearance
before this court. Hence, sought to grant bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 2.512 Kgs., of Amphetamine
from a parcel sent from NSW Sidney, Australia. The said
amphetamine seized is a commercial quantity. There are
sufficient materials available against the petitioner and the
said offences are punishable with rigorous imprisonment for a
term which shall not be less than 10 years which may extend
to 20 years and shall also be liable to fine. The investigation is
pending. In the event of his release he may tamper with the
prosecution witnesses. Incriminatory articles were seized from
his custody. He may involve himself in similar offences.
Investigating agency by complying the provisions prevailed
under the act has seized the contraband from the petitioner.
The petitioner herein would sell the drugs to the younger
generation which may ruin the career of younger generation.
With these specific pleas sought to reject the bail plea of the
petitioner.
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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 Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- The NCB, Bangalore has put the
criminal law into motion. The gist of the allegation reads as
here under:-
On 6.7.2021, complainant on the credible information
seized 2.512 Kgs., of Amphetamine from two parcel bearing
way bill No.4188489270 at DHL Express India Pvt., Ltd.,
No.69, 3rd cross, II stage, Yeshwanthpur Industrial Suburb,
Yeshwanthpur, Bangalore - 22. The details of consignor was
found to be in the name of Pradeep Kumar, s/o.Roshan,
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No.39B, Shahu Mill Colony, Rajarampuri, Kolhapur,
Maharashtra and was destined to as Peter John, No.12 Colin
Street, Lakemba, NSW Sidney, 2195, Australia. On enquiry it
was revealed that the said parcel was undelivered due to no
such person in the above mentioned address. Further the said
person namely A Syed Abu Thahir was arrested by NCB
Hyderabad on 3.9.2021. The said Thahir was produced before
this court on 3.9.2021 as per body warrant issued by this
court. Thereafter, he was taken to custody by NCB for further
investigation. On 31.8.2021 during interrogation he has
stated that he has exported a parcel from which 2.512 Kgs., of
Amphetamine was seized on 6.7.2021 with fake purchase
invoice and fake Aadhaar card having his photo in the name of
Pardeep Kumar. Thereafter, he was produced before this court
and remanded to judicial custody. The IO NCB filed complaint
after conclusion of investigation in the case.
8. Learned counsel for petitioner vehemently argues that
as per the investigation papers the seized article is a controlled
substance. The said factum is evident from the FSL report.
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That apart the petitioner herein has been granted bail in
Crl.Misc.3726/2021 dated 23.11.2021 by the Sessions Court,
Hyderabad in NCB. F. No. 48/01/09/2021/ NCB/ Subzone/
Hyderabad. Accused is not prosecuted in any other case.
He has referred to the order of Hon'ble Bombay High
Court where the Hon'ble High Court has granted bail in a case
where the seized article is a controlled substance. It is held by
the Hon'ble High Court of Bombay that concept of commercial
quantity does not apply to controlled substance as per the
provisions of the act.
He has also referred to the order of Hon'ble High Court of
Karnataka in the case of Crl.petition No.3952/2021 in the
case of Anjoom Rahman K Vs., Union of India, NCB.,
Bangalore where the Hon'ble High Court has granted bail to
the accused holding that petitioner is not guilty of offence
U/s.8(c) R/w.Sec.22(c) & 23(c) of NDPS Act and the twin
conditions U/s.37(1)(b) are not satisfied.
He has also referred to the order of Hon'ble High Court of
Delhi where the accused is prosecuted for possession of
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pseudo ephedrine which is held to be controlled commodity.
The Hon'ble High Court has granted bail as seized article is a
controlled commodity and rigors of Sec.37 of the Act is not
applicable.
9. Here in the present case initially the investigating
agency at the time of seizure suspected the article as 2.512
Kgs., of amphetamine. After receipt of FSL report it is opined
that the seized article is a pseudo ephedrine. Further,
petitioner has been granted bail by the learned sessions judge
in NCB.F.No.48/1/9/2021, Hyderabad. The investigation in
the cases concluded Charge sheet has been submitted. As per
the judgment of Hon'ble High Court of Bombay when the
seized article is a controlled substance rigors of Sec.37 is not
applicable and the concept of commercial quantity does not
apply to controlled substance. On looking to the order of
Hon'ble High Courts referred above, when the seized article in
the present case which is a controlled substance rigors of
sec.37 is not applicable. The investigation in the case is
concluded and the complaint has been already submitted by
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the instigating agency. Further custodial detention of the
accused is not warranted. This court has considered the bail
plea of the petitioner in Crl.Misc.11676/2021 and has rejected
the same as the seized article is Amphetamine. After receipt of
FSL report it is evident that the seized article is psecudo
ephidrine and it is a controlled substance. As per the dictums
of Hon'ble High Courts referred to by the petitioner, the rigors
U/s.37 could not be made applicable to the controlled
substance. 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.
10. Point No.2:- In the result, I proceed to pass following:
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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.
4. He shall co-operate with I.O for investigation.
5. He shall not commit similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and photo ID proof of his sureties.
7. He shall appear before the court on all dates of hearing.
108. 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 11th day of February 2022].
(B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.
CN/*