In a notable decision concerning the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the XXXIV Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, Sri. G. Raghavendra, granted regular bail to Arjun Prasad, a 25-year-old resident of Bihar, who was arrested in connection with the seizure of five kilograms of Ganja. The order, passed on September 5, 2023, in Crl.Misc. No. 8255/2023, determined that the quantity seized did not invoke the stringent bail conditions applicable to ‘commercial quantity’ under the NDPS Act.
The petitioner, Arjun Prasad, S/o Shivalal Yadav, was arrested by the Inspector of Excise, Mahadevapura Range, and booked under Section 20(b)(ii)(B) and Section 8(c) of the NDPS Act, 1985.
Background of the Case
The case, registered as Crime No. 7/2023-24/4008IE/400808, stems from a raid conducted by the Excise Inspector, Sri. A. Mujawar, on August 19, 2023. The Inspector, based on specific information that an individual of Bihar origin, later identified as Arjun Prasad, would be near Shree Lakshminarayana Swamy temple on the service road under Hoodi Bridge carrying contraband, recorded the intelligence in writing and obtained permission from superior officers to conduct the raid.
During the surveillance, an individual matching the description, carrying a grey colour luggage bag, was spotted wandering suspiciously. Upon interception and detention, the accused revealed his identity as Arjun Prasad. The Excise Inspector complied with the procedural requirements of the NDPS Act, including informing the accused of his right to be searched before a Magistrate or a Gazetted Officer. Upon the accused’s consent, the subsequent search of the bag yielded two bundles containing dry Ganja with flowers and fruiting parts. The total quantity of Ganja recovered was 5 kilograms, comprising 4 kgs in one bundle and 1 kg in the second. The accused reportedly admitted to purchasing the Ganja from the State of Bihar. Samples were collected for chemical examination, and the remaining material was seized under a mahazar.
Analysis of the Bail Provisions
The primary legal challenge in NDPS cases lies in overcoming the restrictive conditions imposed by Section 37 of the NDPS Act, which typically makes bail exceptionally difficult for serious drug offences. Section 37(1)(b) mandates that no person accused of an offence involving ‘commercial quantity’ shall be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty and that he is not likely to commit any offence while on bail.
However, the Special Judge’s analysis pivoted on the quantum of the seized material:
- Quantity Classification: The court referred to the Central Government’s specification SO 1055 (E), dated 19.10.2021. According to this notification, 1,000 grams (1 kg) of Ganja is specified as small quantity, and 20 kg of Ganja is specified as commercial quantity.
- Intermediate Quantity: Since the quantity recovered from Arjun Prasad was 5 kgs, it falls into the intermediate quantity category, which is between the small and commercial thresholds.
- Applicability of Section 37: Because the quantity involved was below the ‘commercial quantity’ (20 kg), the stringent double-condition prescribed under Section 37(1)(b) of the NDPS Act did not apply.
Relying on the General Rule of Bail
With the strict bar of Section 37 removed, the court evaluated the bail application based on the general principles laid down in the Code of Criminal Procedure (Cr.P.C.), specifically Section 437. The maximum punishment for the offence under Section 20(b)(ii)(B) is rigorous imprisonment for a term which may extend to 10 years. Crucially, the offence is not punishable with death or imprisonment for life, further tilting the balance in favour of the petitioner’s liberty.
The prosecution objected to the bail, citing the possibility of the accused committing similar offences, tampering with witnesses, or failing to appear before the court. The court acknowledged these concerns but noted that the prosecution had not objected based on the accused’s involvement in similar or prior offences. The Special Judge concluded that these apprehensions could be met by imposing suitable conditions as stipulated under Section 437(3) of Cr.P.C.
Ultimately, the court found that the petitioner was able to “satisfy that there are reasonable grounds for believing that he is not guilty of the alleged offence” for the purpose of bail, given the intermediate quantity involved and the maximum punishment.
Bail Granted with Strict Conditions
The court allowed the Criminal Miscellaneous Petition and ordered the release of Arjun Prasad on bail upon the execution of a personal bond of Rs. 1,00,000/- (Rupees One Lakh), along with one surety for the like sum.
The bail was made subject to the following conditions:
- The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case.
- The petitioner shall cooperate with the Investigation Officer for investigation.
- The petitioner shall submit a copy of his Aadhaar Card.
- The petitioner shall regularly appear before the court.
- The petitioner shall not commit any offences similar to the offences of which he is accused or any other offences.
The court further warned that any breach of these conditions would entail the cancellation of bail. This judgment reinforces the principle of proportionate justice in NDPS cases, ensuring that the restrictive Section 37 is applied only where the severity of the crime, specifically involving commercial quantity, necessitates it.