Point of Law: Search and seizer of contraband – Grant of Bail - No sufficient material at this stage to hold that there are reasonable grounds or a prima facie case against the petitioner to deny bail to him invoking the provisions of Section 37 of the NDPS Act

ORDER :

1. This petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in connection with a case registered in Crime No.588/2018 of Banaswadi Police Station, Bengaluru City, for offences under Sections 21(b), 21(c), 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred to as ‘NDPS Act’ for short] and Section 14 of the Foreigners Act, 1946.

2. Brief facts;

On 02.11.2018, at about 9.00 a.m., on a credible information that 2 African nationals and one Indian national are indulged in drug trafficking, the premises bearing No.25, I Floor, 3rd Cross, Kacharakanahalli, Thomas Town, Bengaluru, was raided by the CCB Police and from the possession of accused Nos.1 to 3, they seized 1.5 kgs. of cocaine, 914 gms. of ecstasy drug in the form of 1930 pills as well as Toyota car, Honda Active bike and other articles and on the basis of the report submitted by the Police Inspector, CCB., Women and Narcotic Drugs Squad, the aforesaid case was registered. On completion of investigation, chargesheet was filed against accused Nos.1 to 3 for offences punishable under Sections 468, 471, 420, 120B of IPC and Sections 21(b), 21(c), 22(c) of the NDPS Act and under Section 14 of the Foreigners Act, 1946. On 03.09.2020, the Investigation Officer filed a memo before the jurisdictional court for permission to conduct further investigation under Section 173(8) Cr.P.C. and on obtaining the permission, he proceeded with the further investigation and on 03.09.2020 and 04.09.2020 arrested accused Nos.4 and 5 respectively. Thereafter, the present petitioner came to be apprehended on 09.09.2020.

3. The petitioner herein, who is arraigned as accused No.6, filed a petition under Section 439 of Cr.P.C. before the Special Court which was rejected in Criminal Misc. No.5296/2020 vide Order dated 10.11.2020.

4. The learned Senior Counsel appearing for petitioner has vehemently contended that the petitioner is innocent and he is not involved in any offence much less the one now alleged against him by the prosecution. He would contend that after his arrest, no contraband substances have been recovered from his possession and he has been arraigned as an accused on an allegation that he erased the data from his mobile phone and thereby committed offences punishable under Sections 201 and 204 of IPC. He contends that there is absolutely no material collected for such allegations made by the prosecution since, in spite of taking the petitioner to Police custody for a period of more than 12 days, the prosecution has not collected any material to substantiate the same. Learned senior counsel has drawn the attention of this Court to the mahazar drawn by the Police on 10.09.2020 and submits that the articles which are now alleged to have been seized from his house cannot be said to be incriminating materials so as to connect the petitioner with the alleged offence. It is his further contention that accused Nos.1 to 3 against whom there are serious charges including seizure of narcotic drugs, have been enlarged on bail and even accused No.5 has been granted bail by this Court. He submits that the petitioner hails from a respectable family and he is the sole bread winner in the family and his father was a retired Brigadier of the Indian Army. The petitioner is the Founding Member of one Rachana Kala Foundation, a Charitable Institution which promotes Indian Culture and Music and he has contributed to the social cause etc. He further contended that Section 37 of the NDPS Act will not attract to the case on hand since there is no contraband material seized at the instance of the petitioner and further, there are reasonable grounds to believe that petitioner is not guilty of the offences alleged. Accordingly, he seeks to allow the petition.

5. The learned Spl.P.P. appearing for the respondent has filed statements of objection. He has opposed grant of bail to the petitioner contending that the total quantity of drugs seized