In a significant ruling under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the XXXIII Additional City Civil & Sessions Judge and Special Judge for NDPS cases in Bengaluru granted regular bail to Athiq Hussain (Accused No. 2). Presided over by Smt. B.S. Jayashree, the Special Court delivered its order in Criminal Miscellaneous Petition No. 6559/2022 on July 14, 2022, holding that the rigors of Section 37 of the NDPS Act do not apply to cases involving non-commercial or intermediate quantities of contraband.

Background of the Prosecution Case

The criminal law was set into motion based on a report submitted by the Police Sub-Inspector of D.J. Halli Police Station. According to police reports, on June 27, 2022, at approximately 4:00 PM, officers on duty at P&T Quarters spotted two individuals riding a Suzuki Access motorcycle who attempted to flee upon noticing the police presence.

Upon being intercepted, the rider and pillion rider admitted to transporting Ganja. Following oral authorization from higher officers, a search operation was conducted at around 5:00 PM in the presence of independent witnesses (panchas). The police seized 1 kilogram and 100 grams of Ganja under a formal seizure panchanama. Consequently, Crime No. 248/2022 was registered against the accused under Section 20(b)(ii)(B) of the NDPS Act, and both individuals were remanded to judicial custody. Athiq Hussain was implicated as Accused No. 2 in the matter.

Contentions of the Petitioner

Seeking release on regular bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.), Athiq Hussain through his defense counsel submitted:

• Allegations of False Implication: The petitioner maintained complete innocence, asserting he was unaware of the contraband and falsely implicated by the police.
• Procedural Non-Compliance: The defense argued that mandatory provisions governing search and seizure under Sections 41, 42, 50, 52, and 47 of the NDPS Act were violated.
• Non-Commercial Quantity: The quantity seized (1.1 kg Ganja) did not meet the commercial threshold.
• Sole Breadwinner Status: The petitioner is a permanent resident of Bengaluru, a law-abiding citizen with no prior criminal antecedents, and the sole breadwinner for his family.
• Willingness to Comply: He expressed readiness to furnish solvent sureties and adhere to any bail conditions imposed by the court.

Objections by the Prosecution

The prosecution, represented by the Public Prosecutor, strongly opposed the bail application:

• The prosecution contended that 1.1 kilograms of Ganja was recovered directly from the joint possession of the accused.
• They asserted that the offense carries a maximum punishment of up to 10 years of rigorous imprisonment along with fines.
• The prosecutor characterized the petitioner as an habitual drug dealer and raised concerns that granting bail could lead to absconding and hampering of the ongoing investigation.

Court’s Analysis and Key Findings

The Special Court systematically analyzed the arguments and prosecution papers, focusing on the classification of the seized contraband and applicable judicial precedents.

Contraband Classification and Section 37 NDPS Act

As per Notification S.O.1055(E) issued on October 19, 2001, by the Ministry of Finance (Department of Revenue):

• Small Quantity (Ganja): Up to 1,000 grams (1 kg).
• Commercial Quantity (Ganja): 20 kilograms or more.

The court observed that the 1,100 grams (1.1 kg) of Ganja seized in this case falls between small and commercial thresholds, constituting an intermediate quantity.

The court placed reliance on the Supreme Court judgment in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488], where the Apex Court granted bail in a case involving non-commercial quantity (14 kg of Ganja) when the accused had no prior criminal antecedents.

Applying this precedent, Judge B.S. Jayashree observed that when the quantity involved is less than commercial, the strict statutory bar and rigors under Section 37 of the NDPS Act do not apply. Consequently, the evaluation of the bail application aligns with regular statutory standards unless exceptional adverse circumstances are demonstrated by the prosecution.

Factors Leading to Bail Approval

1. Completion of Recovery: The contraband was already seized, and the major portion of the investigation was complete, making further custodial interrogation unnecessary.
2. Recorded Statement: The petitioner’s voluntary statement had already been recorded by the investigating authorities.
3. Nature of Penalty: The offense does not carry life imprisonment or the death penalty.
4. Verifiable Residence: The petitioner provided a permanent local address, and prosecution concerns regarding trial delays could be effectively mitigated through strict conditions.

Terms and Conditions of Bail

Finding sufficient grounds for relief, the court allowed the petition under Section 439 Cr.P.C. Athiq Hussain was ordered to be released on bail upon executing a personal bond of Rs. 1,00,000/- with two sureties of the like sum, subject to the following conditions:

1. The petitioner must mark his attendance before the concerned Investigating Officer once a month (preferably the first Monday) between 10:00 AM and 2:00 PM until the charge sheet is filed or further orders are issued.
2. He shall not leave the court’s jurisdiction without prior permission.
3. He shall not tamper with prosecution witnesses or abscond.
4. He must fully cooperate with the Investigating Officer during investigation.
5. He shall not commit similar offenses or any other crime while on bail.
6. He must furnish photo ID proof and local address proof for himself and his sureties.
7. He must attend all scheduled court hearing dates regularly.
8. Any violation of these conditions will result in the immediate cancellation of bail.