Bengaluru, December 5, 2022 — The XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) in Bengaluru, Smt. B.S. Jayashree, LL.M., delivered a split decision on a bail petition filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.) by two accused persons facing charges under the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the Arms Act.
The court, on this 5th day of December 2022, allowed the bail plea of Petitioner No. 1, Anas @ Prince, but rejected the plea of Petitioner No. 2, Mohammed Shakir, citing his extensive criminal history, including prior cases under the NDPS Act.
The case, registered as Crl. Misc. No. 11095/2022, pertains to Cr. No. 356/2022 of the Yeshwanthpur Police Station, involving offences punishable under Section 20(b), 22(b), 27(b) of the NDPS Act and Section 25 of the Arms Act.
Allegations and Seizure Details
According to the prosecution, the PSI of Yeshwanthpur Police Station, acting on credible information on November 2, 2022, conducted a raid and apprehended the two petitioners on the footpath near Christ the King Church road. The search conducted under a mahazar led to the seizure of contraband from both individuals.
Specifically, the court records indicate the following seizures:
- From Accused No. 1 (Anas @ Prince): 1.5 grams of MDMA from his hand and 3.5 grams of MDMA from his right pant pocket, totaling 5 grams of MDMA.
- From Accused No. 2 (Mohammed Shakir): 80 grams of Ganja and 1 Kg, 20 grams of Ganja leaves from a college bag, totaling 1 Kg, 100 grams of Ganja.
The prosecution, represented by the Public Prosecutor, opposed the bail, arguing that the seized quantities were intermediate and that the offenses were serious, punishable with up to 20 years of rigorous imprisonment. They further contended that the petitioners were habitual drug dealers and posed a flight risk, with the potential to tamper with evidence if released.
Judicial Analysis on Quantity and NDPS Rigors
A key aspect of the court’s reasoning involved the quantity of the seized substances and its classification under the NDPS Act. The court referenced the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001, which specifies the small and commercial quantities of narcotic drugs.
Ganja (Cannabis): The court noted that 1000 grams (1 Kg) is classified as the small quantity for Ganja, and 20 Kgs is the commercial quantity. The total seizure of 1 Kg, 100 grams of Ganja was thus categorized as an intermediate quantity.
MDMA (Methylenedioxymethamphetamine): For MDMA, 0.5 grams is the small quantity, and 10 grams is the commercial quantity. The seizure of 5 grams of MDMA was also determined to be an intermediate quantity.
The court observed that since the seized quantity, although significant, was less than the commercial quantity, the strict rigors of Section 37 of the NDPS Act—which imposes a double-test standard for bail in commercial quantity cases—would not be attracted. This observation allowed the court to consider the bail pleas under the more regular factors applicable to other statutes.
The Decisive Factor: Criminal Antecedents
Despite the non-attraction of Section 37, the court proceeded to analyze the case based on established bail parameters, including the nature of the accusation, the severity of the punishment, the danger of absconding, and the criminal antecedents of the accused. This is where the petitioners’ fates diverged.
The investigating agency submitted a detailed report on the criminal record of Petitioner No. 2 (Mohammed Shakir). The report revealed he has been prosecuted in several criminal cases under the Indian Penal Code (IPC), including serious charges such as Sections 143, 142, 148 (unlawful assembly and rioting), 353, 332 (assaulting public servant), 324 (causing hurt), 307 (attempt to murder) read with 149 IPC, and 392 (robbery). Crucially, he was also prosecuted in another NDPS case (Cr. No. 147/2016 U/s. 20(B) of NDPS Act).
Relying on Supreme Court judgments, including State of Kerala Vs. Mahesh and the Karnataka High Court’s ruling in State of Karnataka Vs. D.B. Sandeepa, the court emphasized that the gravity of the offense, the severity of the punishment, and the criminal antecedents must be carefully appreciated. The court noted that a judge’s discretion for granting bail must be exercised judiciously, especially in cases of heinous offenses.
The Judge concluded, “Therefore, on looking to the criminal antecedents of petitioner No. 2, I feel he is not entitled for bail in this case.”
Bail Granted to Petitioner No. 1
In contrast, the court found that Petitioner No. 1 (Anas @ Prince) was not having any criminal antecedents. The court reasoned that since the quantity was intermediate and the rigors of Section 37 were inapplicable, granting him bail would not hamper the investigation or trial. The court compensated for the prosecution’s apprehension of flight or tampering with evidence by imposing stringent conditions.
The Final Order and Conditions
The Petition filed by Petitioner No. 2 (Mohammed Shakir) U/Sec. 439 of Cr.P.C. was hereby rejected.
The Petition filed by Petitioner No. 1 (Anas @ Prince) U/Sec. 439 of Cr.P.C. was hereby allowed.
Petitioner No. 1 was enlarged on bail upon executing a personal bond for a sum of Rs. 1,00,000/- with two sureties for the like sum, subject to the following stringent conditions:
- He shall give attendance before the concerned Investigating Officer (I.O.) once a month, preferably on the first Monday of every month between 10:00 a.m. and 2:00 p.m., until the filing of the charge sheet or further orders.
- He shall not leave the jurisdiction of the court without prior permission.
- He shall not tamper with the witnesses or abscond.
- He shall cooperate with the I.O. for the investigation.
- He shall not commit a similar offence or any offence while on bail.
- He shall furnish his photo ID proof and local address proof document before the court, along with the photo ID proof of his sureties.
- He shall appear before the court on all hearing dates.
- Breach of any of the conditions would entail the cancellation of bail.
The judgment underscores the critical role of a clean criminal record in securing bail, even when the seized drug quantity falls short of the threshold that would typically invoke the harshest provisions of the NDPS Act. The court’s meticulous application of the law resulted in a nuanced verdict, reflecting the principle of individualized justice based on the facts and antecedents of each accused person. This ruling reinforces the judiciary’s cautious approach, especially in matters concerning drug trafficking and public safety.