The Court of the XXXIV Additional City Civil and Sessions Judge and Special Judge, (NDPS), (CCH–35), Bengaluru, on September 11, 2023, granted regular bail to five individuals—Baisannaba Rana, Deepak Rana, Shiba Rana, Akash Kumar, and Dholeshwara Rana—in a significant drug case involving the seizure of 28 kilograms of Ganja. The accused, all hailing from the state of Odisha, were facing charges under Sections 20(b)(ii)(B) and 20(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), after being arrested by the Yelahanka New Town Police Station in Crime No. 192/2023.

The bail order, Crl.Misc. No. 8467/2023, was pronounced by Sri. G. Raghavendra, the Special Judge, who found sufficient grounds to believe that the petitioners, accused Nos. 1 to 5, were not guilty of the alleged offences, thereby satisfying the stringent twin conditions stipulated under Section 37 of the NDPS Act. The case presents a detailed examination of procedural non-compliance concerning crucial provisions of the NDPS Act, ultimately tilting the balance in favor of the accused for the grant of bail, despite the commercial quantity of the contraband seized.

The factual matrix of the case dates back to June 27, 2023, when the Police Sub-Inspector (PSI) of Yelahanka New Town police station received information about unknown persons selling Ganja near K.K. Hospital towards LBS city. A raid was subsequently organized, and five persons—the petitioners—were detained near Poornapragna school. The search, conducted by an Assistant Commissioner of Police (ACP) after the PSI obtained permission, led to the seizure of 7 kgs of Ganja from the bag of accused No. 1 (Baisannaba Rana), accused No. 2 (Deepak Rana), accused No. 3 (Shiba Rana), and accused No. 4 (Akash Kumar), totaling 28 kgs. Accused No. 5, Dholeshwara Rana, was found in possession of a mobile phone and Rs. 270/-, but no Ganja. The total quantity of 28 kgs exceeds the 20 kgs limit defined as a ‘commercial quantity’ for Ganja, which ordinarily invokes the severe limitations on bail under Section 37 of the NDPS Act.

The petitioners, represented by counsel Sri. G. Muralidhar, argued primarily on three key points: false implication, the independent nature of the possession (where 7 kgs individually is less than the commercial quantity), and, most critically, the non-compliance with mandatory provisions of the NDPS Act, specifically Sections 42, 50, and 57.

The court’s reasoning focused heavily on the alleged procedural lapses by the investigating officers, particularly concerning Section 50 of the NDPS Act, which provides the right to the accused to be searched in the presence of a Gazetted Officer or a Magistrate. The court noted that the PSI, before calling the ACP, had not informed the accused of this crucial right. Furthermore, the ACP, who conducted the search, informed the accused of their right to be searched by a Gazetted Officer—himself or another—but failed to inform them of their right to be searched by a Magistrate. This omission was deemed a serious deviation from the mandatory procedure laid down under Section 50. The court also observed that the alleged Ganja was not tested using a narcotic drugs test kit at the spot, another point raised by the defense.

A further technicality that weighed in the petitioner’s favor was the description of the seized substance. The complaint described the seized material in Kannada as: “Ganja bundle was cut open and what was found was Ganja with flowers, seeds, and leaves.” The court referenced Section 2(iii)(b) of the NDPS Act, which defines ‘Ganja’ as the “flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops).” The complaint’s explicit mention of seeds and leaves suggests that the seized substance might not strictly conform to the legal definition of ‘Ganja’ under the Act, which, at the stage of bail, contributes to the belief that the accused may not be guilty of the offence charged.

Citing the Supreme Court judgment in Union of India vs. Shiva Shanker Kesari (2007), which defines “reasonable grounds” under Section 37 as something more than prima facie grounds, the Special Judge concluded that the combined effect of the non-compliance with Section 50 and the ambiguity regarding the composition of the seized substance provided “reasonable grounds for believing that they are not guilty of the alleged offences.”

The court, therefore, allowed the petition, enlarging Baisannaba Rana, Deepak Rana, Shiba Rana, Akash Kumar, and Dholeshwara Rana on regular bail. Each petitioner was required to execute a personal bond of Rs. 1,00,000/- (Rupees One Lakh) with two sureties for the like sum. The bail is subject to standard conditions, including non-inducement, threat, or promise to witnesses, cooperation with the investigation, regular court appearance, and a prohibition against committing similar or any other offences. The breach of any of these conditions would lead to the cancellation of bail. This order underscores the critical importance of strict adherence to procedural safeguards, particularly Section 50, in NDPS cases, as even the seizure of commercial quantities can be overridden by non-compliance with the Act’s mandatory provisions at the time of search and seizure.