This petition is filed under Section 439 of Cr.P.C., seeking

regular bail of the petitioner/accused in Crime No.166/2021 of

HSR Layout Police Station, Bengaluru City, for an offence

punishable under Sections 20(b) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (8the NDPS Act9 for short).

2.

Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent/ State.

3.

The factual matrix of the case of the prosecution is

that the complainant 3 Police based on the credible information,

this petitioner along with accused No.2 were apprehended and

found 3 Kgs., 750 grams of ganja, 300 MDMA Tablets and 16

grams of heroin. The ganja is an intermittent quantity and the

MDMA seized is a commercial quantity. A case has been

registered and the matter is under investigation.

3

4.

The learned counsel appearing for the petitioner

would submit that only 3 Kgs., 750 grams of ganja was seized at

the instance of this petitioner and the MDMA seized at the

instance of accused No.2. The ganja seized at the instance of

this petitioner is not a commercial quantity. Hence, he may be

enlarged on bail.

5.

Per contra, the learned High Court Government

Pleader appearing for the State would submit that in total 3

Kgs., 750 grams of ganja, 300 MDMA Tablets and 16 grams of

heroin were seized. The matter is under investigation and his

presence is necessary for investigation. Hence, bail may not be

granted.

6.

Having heard the respective counsel and also having

considered the factual aspects of the case and the learned

counsel also brought to the notice of this Court that the order

passed by this Court in Crl.P.No.5259/2018 in coming to the

conclusion that the material placed on record prima facie does

not make out a case to show that the seized LST is a drug and

there is violation of the NDPS Act. But, in the case on hand, not

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yet received the report whether the MDMA is a manufactured

drug or not. Apart from that, the matter is under investigation.

The quantity of ganja seized is an intermittent quantity and the

MDMA seized is a commercial quantity. When such being the

factual aspects of the case, it is not a fit case to exercise the

discretion under Section 439 of Cr.P.C.

7.

The other contention of the learned counsel for the

petitioner is that in Crl.P.No.5259/2018, this Court exercised the

discretion and the same is not a precedent and nowhere in the

order discussed with regard to Section 37 of the NDPS Act. In

terms of Section 37 of the NDPS Act, the petitioner has to make

out a case to enlarge him on bail that no prima facie case is

made out against him. When the recovery is made at the

instance of this petitioner to the extent of 3 Kgs., 750 grams of

ganja as well as 300 MDMA Tablets, the same were seized at

the instance of accused No.2 and both of them are traveling in

the motor cycle. When the joint recovery was made, it is not a fit

case to enlarge him on bail to exercise the discretion under

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Section 439 of Cr.P.C., unless the investigation has been

completed.

8.

In view of the discussions made above, I pass the

following:

ORDER

(i)

The bail petition is rejected.

(ii)

However, liberty is given to the petitioner to

approach this Court after filing of the charge

sheet.

Sd/-

JUDGE

cp*