Bengaluru, January 24, 2023: In a significant ruling concerning the application of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the XXXIII Additional City Civil and Sessions Judge & Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, granted bail to two accused persons, Bikas Sahoo @ Raja and Ajad Ali Sheikh. The order was passed in Criminal Miscellaneous Petition No. 442/2023, which sought bail under Section 439 of the Cr.P.C. for the petitioners who were arrested in connection with Crime No. 05/2023 registered at Byappanahalli Police Station.

The petitioners, Bikas Sahoo (25), a resident of ECC Road, Whitefield, originally from Odisha, and Ajad Ali Sheikh (30), a resident of Ramagondanahalli, Whitefield, originally from West Bengal, were booked for offences punishable under Sections 20(b) and 22(b) of the NDPS Act, related to the possession of Ganja and Heroin.

Details of the Alleged Offence

The case was registered based on a police report detailing a raid conducted on January 10, 2023. According to the prosecution, the Police Inspector of Byappanahalli Police Station received credible information at 8:45 AM that certain individuals were selling contraband in front of RMZ, Old Madras Road. After obtaining permission from a higher officer, the raiding team, along with panchas and staff, proceeded to the spot at 10:30 AM.

The police apprehended the two suspects, Bikas Sahoo and Ajad Ali Sheikh, who were allegedly moving suspiciously. A personal search was conducted in the presence of an Assistant Commissioner of Police (ACP). The search allegedly yielded 6 grams of Heroin in a plastic zip lock bag from Accused No. 1, Bikas Sahoo, and 1 kg and 100 grams of Ganja in a plastic carry bag from Accused No. 2, Ajad Ali Sheikh. The contraband was seized under a detailed mahazar, and both individuals were arrested.

Contesting the Bail Plea

The petitioners’ counsel argued for bail, asserting the innocence of the accused and claiming they were falsely implicated. The defence emphasized that the mandatory provisions of Section 50 of the NDPS Act (conditions for search of persons) were not complied with, and the quantity of the seized drug did not constitute a “commercial quantity.” They also highlighted that the petitioners had no bad antecedents and were the sole breadwinners for their families.

The Public Prosecutor strongly objected to the bail application. The prosecution contended that there was a prima facie case, with a seizure of 1 Kg, 100 grams of Ganja and 6 grams of Heroin. They argued that the offence carries a punishment of up to 10 years of rigorous imprisonment, and if released, the petitioners, who were described as habitual drug dealers, might abscond or hamper the investigation.

The Court’s Analysis on Quantity and Legal Precedent

The crux of the court’s decision revolved around the classification of the seized quantity. The Special Judge meticulously analyzed the weight of the seized drugs against the Ministry of Finance Notification S.O.1055(E) dated October 19, 2001, which defines small and commercial quantities for various narcotic substances.

As per the notification:

• Ganja: Small Quantity is 1000 grams (1 Kg), and Commercial Quantity is 20 Kgs.
• Heroin: Small Quantity is 5 grams, and Commercial Quantity is 250 grams.

In the present case, the total seizure was $1 \text{ Kg}, 100 \text{ grams of Ganja}$ and $6 \text{ grams of Heroin}$. The court observed that the quantity of Ganja was marginally above the small quantity (1000 grams), and the quantity of Heroin was also marginally above the small quantity (5 grams). Considering the combined seizure, the court categorized the total quantity as an “intermediate quantity.”

Relying on the decision of the Hon’ble Apex Court in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), where the Supreme Court granted bail for a non-commercial quantity of 14 Kgs of Ganja, the Special Judge held that the legal precedent “aptly applies to the case on hand.” The court concluded that since the seized quantity was intermediate and not commercial, the stringent rigours of Section 37 of the NDPS Act, which places a heavy burden on the accused for bail in cases involving commercial quantity, would not be attracted.

The Final Verdict

Given that a major portion of the investigation, including the seizure of the articles, was already concluded and further custodial interrogation was deemed unnecessary, the court ruled that the petitioners were entitled to bail. The court noted that the apprehension of the prosecution regarding absconding and tampering with evidence could be adequately addressed through the imposition of stringent conditions.

The court allowed the petition, enlarging Bikas Sahoo and Ajad Ali Sheikh on bail upon the execution of a personal bond for Rs. 1,00,000/- each, with two sureties for the like sum.

The bail was granted subject to the following key conditions:

• The petitioners shall attend before the Investigating Officer (I.O.) once a month (preferably on the first Monday) between 10:00 AM and 2:00 PM until the filing of the charge sheet.
• They shall not leave the court’s jurisdiction without prior permission.
• They shall not tamper with witnesses or abscond.
• They shall not commit similar or any other offence while on bail.
• They must furnish photo ID proof and local address proof before the court.

The bail is liable to be cancelled should the petitioners breach any of the imposed conditions.