Executive Summary of the Ruling

On September 20, 2022, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bengaluru, presided over by Smt. B.S. Jayashree, allowed Criminal Miscellaneous Petition No. 9149/2022. The court granted regular bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.) to Ajaykumar Majhi (Accused No. 1).

The petitioner was arrested in connection with Crime No. 270/2022, registered by the Hebbagudi Police Station for offences punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The court granted relief primarily on the ground that the seized contraband—1 kg 430 grams of ganja—constitutes an intermediate quantity, which makes the strict statutory conditions for bail under Section 37 of the NDPS Act inapplicable.

Case Overview and Factual Background

The Police Raid and Seizure

According to the report submitted by the Police Sub-Inspector (PSI) of Hebbagudi Police Station, credible information was received on September 3, 2022, at approximately 3:00 PM. The informer reported that two individuals would arrive near the stone quarry road leading from Hulimangala to Vajapaye Circle, Tirupalya, Jigani Hobli, Anekal Taluk, to sell contraband.

After obtaining permission from superior officers, the raiding team invited independent panchas and set up surveillance at the location around 5:00 PM. Two individuals carrying a school bag were intercepted. Upon questioning, they identified themselves as Ajaykumar Majhi (Accused No. 1) and Jithun Kumar Posh (Accused No. 2), both hailing from Odisha.

A search was conducted in the presence of the Deputy Superintendent of Police (Dy.S.P.), resulting in the recovery and seizure of 1 kg 430 grams of ganja. A detailed seizure panchanama was drawn up, and Crime No. 270/2022 was registered under Section 20(b)(ii)(B) of the NDPS Act. Both accused were subsequently arrested, produced before the jurisdictional Magistrate, and remanded to judicial custody.

Procedural Status of Petitioner No. 2

While the bail application was initially filed on behalf of both Accused No. 1 (Ajaykumar Majhi) and Accused No. 2 (Jithun Kumar Posh), the counsel for the petitioners submitted a memo on September 14, 2022, seeking to dismiss the petition for Accused No. 2 as not pressed. Consequently, the petition with respect to Accused No. 2 was dismissed as not pressed, and the court proceeded to decide the bail plea solely for Accused No. 1.

Legal Arguments Advanced

Submissions by Petitioner No. 1

Advocate Sri P.V.V., representing Accused No. 1, submitted the following arguments:

• Innocence and False Implication: The petitioner maintained that he was an innocent person with no knowledge of the alleged crime and had been falsely implicated at the instance of extraneous elements.
• Procedural Non-Compliance: The defense contended that mandatory procedures under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not properly followed during the raid.
• Lack of Independent Eye-Witnesses: No independent eye-witnesses attested to the actual sale of the contraband.
• Intermediate Quantity: The recovery of 1.43 kg of ganja fell into the intermediate category, below the statutory commercial threshold.
• Personal Circumstances: The petitioner asserted that he had no prior criminal antecedents, was the sole breadwinner for his family, and was ready to abide by all conditions imposed by the court.

Objections by the Prosecution

The Public Prosecutor opposed the bail plea on the following grounds:

• Direct Possession: The investigating agency seized 1 kg 430 grams of ganja directly from the possession of the accused under a spot mahazar.
• Severity of Offence: The offence charged is punishable with rigorous imprisonment extending up to 10 years and a fine.
• Risk of Absconding: The prosecution argued that the petitioner is a habitual drug dealer and that releasing him on bail would pose a risk of abscondment or interfering with the ongoing investigation.

Detailed Judicial Reasoning and Findings

1. Statutory Classification of the Contraband

The Special Judge evaluated the classification of ganja pursuant to Notification S.O.1055(E) dated October 19, 2001, issued by the Ministry of Finance, Department of Revenue (Entry No. 55):

• Small Quantity: Up to 1,000 grams (1 kg)
• Commercial Quantity: 20 kg and above

Because the quantity seized in this case was 1 kg 430 grams, the court categorized it as an intermediate quantity (above small quantity, but below commercial quantity).

Contraband Category	Statutory Threshold	Quantity in Present Case
Small Quantity	Up to 1 kg	—
Intermediate Quantity	1.01 kg to 19.99 kg	1 kg 430 grams (Seized)
Commercial Quantity	20 kg and above	—

2. Inapplicability of Section 37 Rigors

The court noted that the strict statutory restrictions on granting bail under Section 37 of the NDPS Act apply primarily to cases involving commercial quantities. When the recovery involves an intermediate quantity, standard bail considerations under Section 439 of the Cr.P.C. apply unless the prosecution presents exceptional disentitling factors.

3. Judicial Precedent

The court relied on the Supreme Court judgment in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488]. In that case, the Supreme Court held that where the quantity involved (14 kg of ganja) was non-commercial and the accused had no other criminal record, the accused should ordinarily be released on bail pending trial under appropriate conditions. The Special Judge held that this principle applied directly to the present case.

4. Completion of Material Seizure

The Special Judge observed that the incriminatory article had already been recovered, the voluntary statement recorded, and major aspects of the investigation completed. Because the alleged offence was not punishable by death or life imprisonment, continued custodial detention was no longer warranted. The court concluded that concerns regarding abscondment could be addressed by imposing strict conditions.

Terms and Conditions of the Bail Order

The Special Court allowed the petition for Petitioner No. 1 (Ajaykumar Majhi) and ordered his release on regular bail upon executing a personal bond for Rs. 1,00,000/- with two sureties for the like sum, subject to the following conditions:

1. Station Attendance: The petitioner shall report before the Concerned Investigating Officer once a month (preferably on the first Monday) between 10:00 AM and 2:00 PM until the filing of the charge sheet or further orders, whichever is earlier.
2. Jurisdictional Restriction: The petitioner shall not leave the court’s jurisdiction without prior permission.
3. Non-Interference: The petitioner shall not tamper with prosecution witnesses or abscond.
4. Cooperation with Investigation: The petitioner shall cooperate fully with the Investigating Officer.
5. Prevention of Recidivism: The petitioner shall not commit a similar offence or any other offence while on bail.
6. Documentation: The petitioner shall furnish his photo ID proof and local address proof, along with photo ID proofs of his sureties, before the court.
7. Court Appearance: The petitioner shall appear before the court on all hearing dates.
8. Cancellation Clause: Any breach of these conditions will entail cancellation of bail.