ORDER

This petition is filed under Section-439 of Cr.P.C. by accused No.4 in Special C. No.1446/2022 pending on the file of XXXII Additional City Civil And Sessions Judge &

SPL. JUDGE (NDPS) at Bangalore.

2. I have heard the learned counsel for petitioner and the learned CGC appearing for respondent / Narcotics Control Bureau ('NCB' for short).

3. The case of the prosecution is that on

08.04.2021, at about 17.45 hours, secret information was received from reliable sources that two persons namely, Ashok Kumar C.J. and Zakir Hussain, Accused Nos.1 and 2 respectively, are carrying huge quantity of ganja in a Eicher truck bearing registration No.KA-16-A-9235 and they will be entering Bangalore through Devanahalli Toll Gate at around 1.00 a.m. On receiving the said information, on the night intervening 08-09.04.2021, the NCB officials, along with the panchas proceeded to the spot. On noticing the said vehicle approaching the Toll Gate, they intercepted it and on search, found that accused Nos.1 and 2 were transporting three large brown colored jute gunny bags, which were concealed beneath huge load of coconuts. The said gunny bags contained a total quantity of 93.8 kgs of ganja, which was seized under a mahazar. A complaint was filed against accused Nos.1 to 4 alleging offences punishable under Sections- 8(c), 22 read with Section-20(b)(ii)(C), 23, 27(A), 28 and

29 of NDPS Act, 1985.

4. The petitioner is arrayed as accused No.4. It is alleged that the ganja was purchased by accused No.1 and accused No.2 from the petitioner/accused No.4, on the instruction of accused No.3.

5. The learned counsel for respondent has filed the statement of objections opposing the prayer seeking bail. He has contended that the seized ganja is a commercial quantity and in such circumstances sub-section-(2) of Section-37 of NDPS Act 1995 attracts and there is a bar to grant bail to an accused, who is involved in committing offences under the said Act, wherein the contraband seized is a commercial quantity. He further contends that the petitioner has criminal antecedents, wherein he is involved in trafficking counterfeit currency notes. He furthers submits that the Investigating Officer has issued notice to the petitioner to appear before him, but he has not appeared, on the other hand he has absconded and therefore warrant was issued and he was arrested on

22.11.2022.

6. The learned counsel for respondent has relied on two decisions of the Hon'ble Apex Court in the cases of: (i) NEERU YADAV vs. STATE OF UTTAR PRADESH AND ANOTHER, reported in AIR 2015 SCC 3703, and (ii) STATE OF M.P. vs. KAJAD, reported in AIR 2001 SC 3317; to contend that criminal antecedents of the accused cannot be ignored while considering the bail petition and that there is a rider under Section-37 of the NDPS for granting bail to an accused involved in trafficking of commercial quantity of ganja.

7. The learned counsel for petitioner has contended that the petitioner is innocent and he has been falsely implicated in the case, only on the voluntary statement of the co-accused and apart from that, there is no incriminating material against the accused. He submits that the petitioner is languishing in judicial custody from

25.11.2022 for no reason. He submits that the petitioner is willing to abide by any condition and therefore, seeks to allow the petition.

8. According to the prosecution, credible information was received that two persons i.e., accused Nos.1 and 2 are carrying huge quantity of ganja in a Eicher truck bearing No.KA-16-A9235. As such, the said truck was intercepted near Devanahalli toll gate and both the accused were arrested and on search of the said truck they found that the accused had concealed 93.8 kgs of ganja in three large brown colored jute gunny bags, beneath huge load of coconuts. The allegations against the petitioner, arrayed as accused No.4 is that he has supplied ganja to accused No.1.

9. It is relevant to extract para 12 and 13 of the complaint, which reads as unde