In a significant ruling for cases involving small quantities of contraband, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, has granted bail to an accused person arrested for the possession of 130 grams of ganja. The order, delivered by Judge Smt. B.S. Jayashree on December 3, 2022, in Crl.Misc.No.11519/2022, emphasizes that the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, do not apply when the seized quantity is ‘small,’ allowing the court to consider the bail plea under normal statutory parameters.

The petitioner, identified as Ansar Basha @ B.D. Basha (accused No.1), aged 26, a resident of Attibele Town, had filed the petition under Section 439 of Cr.P.C. to be enlarged on bail in connection with Cr.No.383/2022, registered by the Attibele Police Station for the offence punishable under Section 20(b) of the NDPS Act.

Details of the Case and Prosecution’s Objections

According to the prosecution’s report, the Sub-Inspector of Police (PSI) of Attibele PS, the complainant in the case, received a credible tip on October 15, 2022, at approximately 4:00 p.m., regarding an individual illegally selling ganja near Patalamma Kunte on Indlabele Road, Attibele Town. After informing his higher officer and obtaining necessary permission, the PSI, along with his staff and two independent witnesses (panchas), proceeded to the spot. The accused was apprehended, and a personal search allegedly led to the seizure of 130 grams of ganja. A detailed seizure panchanama was drawn, leading to the registration of the case.

The prosecution vehemently opposed the bail plea, contending that the accused was found in possession of a narcotic drug and a detailed mahazar was drawn at the scene. They argued that the offence carries a punishment of rigorous imprisonment up to one year and asserted that there was a prima facie case against the petitioner. Labelling the petitioner as a “habitual drug dealer,” the prosecution expressed apprehension that granting bail would lead to the accused absconding and potentially hampering the ongoing investigation.

Petitioner’s Grounds for Bail

The counsel for the petitioner, Sri Y.H., countered the allegations, stating that the petitioner was innocent, unaware of the alleged crime, and had been falsely implicated at the instance of extraneous elements. A key point of the defence was the alleged non-compliance with mandatory provisions of the NDPS Act, particularly Section 50, which governs the procedure for personal search. Furthermore, the petitioner’s counsel highlighted that the seized quantity of 130 grams of ganja constitutes a small quantity, and though the offence is non-bailable, it is not punishable with death or imprisonment for life. The petitioner offered to abide by any conditions imposed by the court, furnish surety for his appearance, and stressed his clean record and role as the sole bread earner for his family.

Court’s Analysis and Reliance on Supreme Court Precedent

In its reasoning, the court undertook a careful analysis of the rival contentions and the records presented. The pivotal factor in the court’s decision was the quantum of the seized contraband. Referring to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001, which specifies small and commercial quantities of narcotic drugs, the court noted that for ganja, 1000 grams is defined as a small quantity, while 20 Kgs. is the commercial quantity. Since the seizure in the present case was only 130 grams, it falls squarely within the definition of a small quantity.

The court explicitly relied on the principle laid down by the Hon’ble Apex Court in the case of Birbal Prasad Vs. State of Bihar (2018 11 SCC 488). This judgement held that Section 37 of the NDPS Act—which imposes stringent conditions on bail—does not apply when the quantity involved is non-commercial. The court observed that the said case law “aptly applies to the case on hand in holding that the contraband seized in the case on hand is small quantity and it is not commercial quantity.”

The judgment further articulated that when the quantity is less than the commercial quantity, the “rigors of Sec.37 of the NDPS Act will not attract,” and the factors for bail consideration revert to those under normal statutes, unless exceptional circumstances are pointed out by the prosecution. Given that the major portion of the investigation, including the seizure of the incriminating article, was concluded, and the offence is not punishable with the most severe sentences, the court found that further custodial interrogation was not warranted.

Conditions for Release

Answering the point for consideration in the affirmative, the court allowed the petition and ordered the petitioner, Ansar Basha @ B.D. Basha, to be released on bail. The conditions for release are as follows:

1. The petitioner shall execute a personal bond for a sum of Rs. 50,000/- with one surety for the like sum.
2. He shall not leave the jurisdiction of the court without prior permission.
3. He shall not tamper with the witnesses or abscond.
4. He shall not commit a similar offence or any offence while on bail.
5. He shall furnish his photo ID proof and the photo ID proof of his sureties.

The court explicitly warned that the breach of any of these conditions would entail the cancellation of bail, ensuring that the apprehension of the prosecution regarding tampering and absconding is mitigated by stringent judicial oversight. This ruling reaffirms the distinction between small and commercial quantity offences under the NDPS Act, providing relief to those accused of possessing smaller amounts while awaiting trial.