Bail under the NDPS Act is denied if prima facie evidence of guilt and likelihood to commit further offenses exist.

ORDER

The petitioner-accused No.2 is before this Court seeking grant of bail in Crime No.9/2022 of Thyamagondlu Police Station, Bengaluru, registered for the offence punishable under Section 20 (B) of Narcotic Drugs and Psychotropic Substances Act , (for short, 'the Act'), on the basis of the first information lodged by the informant-Sri Chikkanarashima.

2. Heard Sri.Sandeep H.S., learned counsel for the petitioner and Sri.H.S.Shankar, learned High Court Government Pleader for the respondent-State. Perused the materials placed on record.

3. Learned Counsel for the petitioner submitted that the petitioner is arrayed as accused No.2. He is innocent and law abiding citizen. He has not committed any offence as alleged. He has been falsely implicated in the matter without any basis. He was apprehended on 01.02.2022 and since then he is in judicial custody. It is alleged that the petitioner along with accused Nos.1 and 3 was in possession of ganja and the same was seized under the mahazar. The petitioner was never in possession of the contraband. He was apprehended on previous date of the incident and was illegally detained by the police. It is alleged that 53 kgs of ganja was seized and only Rs.500/ was also seized. There are only official witnesses and no independent witnesses are called during such seizure. The contraband is mixed with allied objects such as leaves, fruits, flower and stem etc. The pure ganja may be of lesser quantity. The procedure as contemplated under NDPS Act are not followed by the P.S.I. who said to have raided along with two police constables. Investigation is completed and the charge sheet is filed. Petitioner is not required to be detained in custody for any purpose. His detention would amount to pre- trial punishment. He is the permanent resident of the address mentioned in the cause title to the petition and is ready and willing to abide by any of the conditions that would be imposed by this Court. Hence, he prays to allow the petition.

4. Per contra, learned High Court Government Pleader opposing the petition submitted that serious allegations are made against the petitioner for having committed the offences. He was caught red handed along with accused No.1. Accused No.3 was at the spot and fled on seeing the police. 53 kgs of ganja kept in 3 bags in Maruthi car, were seized and accused Nos.1 and 2 were apprehended. The mahazar was drawn at the spot. All the procedures as contemplated under the NDPS Act, were complied by the Investigating Officer. After investigation, the charge sheet is filed. The sample drawn during seizure and inventory was forwarded to FSL for testing and it tested positive for cannabis i.e. ganja. Under such circumstances, there is a bar for enlarging the petitioner as per Section 37 (1)(b)(ii) of the NDPS Act. Since the commercial quantity of contraband is seized from the petitioner, he is not entitled for grant of bail. If the petitioner is enlarged on bail, he may never turn up before the Investigating Officer and he may abscond or may commit similar offences or threaten or tamper the prosecution witnesses. Hence, he prays for dismissal of the petition.

5. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

“Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?”

My answer to the above point is in ‘Negative’ for the following:

REASONS

6. It is the contention of the prosecution that this petitioner along with accused Nos.1 and 3 was in possession of 53 kgs of ganja. The car in which the ganja was kept along with cash of Rs.500/- was se