In a significant ruling, the Court of the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, has granted anticipatory bail to a 40-year-old auto-rickshaw owner-cum-driver, Amjad Khan, who was arrayed as Accused No. 4 in a drug trafficking case. The bail, filed under Section 438 of the Code of Criminal Procedure (Cr.P.C.), relates to Crime No. 09/2022 of RT Nagar Police Station.
The order, pronounced by Judge Smt. B.S. Jayashree on August 26, 2022, hinged on the crucial finding that the quantity of Ganja seized in the case—5 kilograms and 750 grams—falls under the category of Intermediate Quantity, thereby neutralizing the stringent restrictions imposed by Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Allegations and Investigation Status
Amjad Khan, S/o Nawab Khan, was sought in connection with offences punishable under Sections 20(b)(ii)(a), 27A, 29, and 32-B(b) of the NDPS Act, primarily concerning the conspiracy and sale of narcotic drugs.
Prosecution’s Case
The case originated from a report filed by a PSI on January 13, 2022. The complainant, while on patrolling duty, received information that four persons were roaming suspiciously near the backside of the 80 feet road. Upon reaching the spot, the persons attempted to flee but were apprehended. The police recovered a cloth bag containing 400 grams of Ganja from one person. Upon further enquiry, it was shockingly revealed that the apprehended individuals were Koramangala Police Constables who had purchased Ganja from Accused No. 3 for the purpose of sale.
The subsequent investigation led to the seizure of a total of 5 Kgs., 750 grams of Ganja from the possession of Accused Nos. 1 and 2 (the police constables). The petitioner, Amjad Khan (Accused No. 4), was implicated under the conspiracy charge (Section 29), but was noted as absconding.
Petitioner’s Grounds for Bail
Represented by Advocate Sri RaviKumar M.B, the petitioner argued that he was innocent, had no knowledge of the crime, and was falsely implicated by the police. Key points raised included:
- The investigation is concluded, and a charge sheet has been filed, thus custodial detention is not necessary.
- The quantum of contraband involved is intermediate, not commercial.
- He is the sole bread earner of his family and has no bad antecedents.
- He is ready to abide by any conditions imposed by the court.
Prosecution’s Objection
The Public Prosecutor opposed the application, arguing that the petitioner was actively involved in a crime punishable with rigorous imprisonment up to 10 years. They alleged that the petitioner was a habitual drug dealer and, if released, would abscond and hamper the investigation.
Judicial Analysis and Statutory Rigors
The court undertook a meticulous analysis of the evidence and the NDPS Act provisions, which ultimately dictated the decision.
The Crucial Classification: Intermediate Quantity
The court’s primary focus was on the quantity of Ganja seized, as this determines whether the draconian conditions of Section 37 of the NDPS Act apply. The total Ganja seized was 5 Kgs., 750 grams.
Referring to the Ministry of Finance Notification S.O. 1055(E) dated October 19, 2001, the court established the following thresholds for Ganja (Sl. No. 55):
- Small Quantity: 1,000 grams (1 Kg.)
- Commercial Quantity: 20 Kgs.
Since the seized quantity of 5 Kgs., 750 grams falls between the small and commercial quantities, it is classified as an Intermediate Quantity.
Applicability of Section 37
The court explicitly stated that “When the quantity is less than commercial quantity, rigors of Sec. 37 of the NDPS Act will not attract.”
The court cited the Supreme Court judgment in Birbal Prasad Vs. State of Bihar (2018), which held that for non-commercial quantities (in that case, 14 Kgs. of Ganja), the appellant should be released on bail, provided there is no involvement in other cases. This precedent was found to be directly applicable.
Conclusion on Bail
With the investigation concluded, the charge sheet filed, and the incriminatory material already seized, the court held that custodial interrogation was not warranted. Furthermore, the petitioner was noted as not having previous criminal antecedents and not being a habitual offender. The court concluded that the prosecution’s apprehension of him absconding could be “compensated by imposing stringent conditions.”
Order and Strict Conditions
The petition for anticipatory bail under Section 438 of Cr.P.C. was allowed. The RT Nagar Police Station was directed to release Amjad Khan on bail in the event of his arrest, subject to the following stringent conditions:
- Personal Bond and Sureties: The petitioner shall execute a personal bond for Rs. 1,00,000/- (Rupees One Lakh Only) with two sureties for the like sum.
- Regular Attendance: The petitioner must appear before the concerned Investigating Officer (I.O.) once a month (preferably on the first Monday) between 10:00 a.m. and 2:00 p.m. until the charge sheet is filed or further orders are issued.
- Jurisdiction Restriction: He shall not leave the court’s jurisdiction without prior permission.
- No Tampering/Absconding: He shall not tamper with the witnesses or abscond.
- Cooperation: He shall cooperate with the I.O. for investigation.
- No Similar Offences: He shall not commit a similar or any other offence while on bail.
- Proof Submission: He shall furnish his photo ID proof and local address proof, along with the photo ID proof of his sureties.
- Court Appearance: He shall appear before the court on all hearing dates.
The court explicitly warned that the breach of any of these conditions would automatically entail the cancellation of bail.