Executive Summary of the Ruling

On December 17, 2022, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bengaluru, Smt. B.S. Jayashree, allowed Criminal Miscellaneous Petition No. 12021/2022. The court granted regular bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.) to B. Budishti Yadav (Accused No. 1) and Manikumar (Accused No. 2).

The petitioners were arrested in connection with Crime No. 233/2022, registered by Mahalakshmi Layout Police Station for offences under Section 20(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The Special Court granted bail primarily on the ground that the direct recovery from the personal possession of the petitioners amounted to 8 kg of ganja (an intermediate quantity). The court held that the subsequent recovery of 186 kg of ganja from a co-accused’s house could not, at the pre-trial stage without documentary evidence of transport or payment, attract the statutory bar under Section 37 of the NDPS Act against these petitioners.

Case Overview and Factual Background

Initial Arrest and Direct Recovery

On December 1, 2022, at approximately 3:30 PM, a Police Sub-Inspector (PSI) from Mahalakshmi Layout Police Station on patrolling duty intercepted two suspicious individuals carrying traveler bags near the Kamalammana Gundi Playground in Mahalakshmi Layout, Bengaluru. The individuals were identified as B. Budishti Yadav (Accused No. 1) and Manikumar (Accused No. 2), both hailing from Srikakulam District, Andhra Pradesh.

Upon opening their bags, police discovered khaki-tape-wrapped bundles containing ganja. A total weight of 8 kilograms of ganja was seized under a detailed panchanama. The petitioners were arrested and remanded to judicial custody.

Co-Accused Disclosures and Subsequent Recoveries

During interrogation, Accused Nos. 1 and 2 revealed in their voluntary statements that they had sold ganja to one Hoova @ Manjunath (Accused No. 3) and one Ananda. Acting on this statement, police raided Ananda’s residence at Bapuji Nagar, Vijayanagar, Bengaluru, on December 5, 2022.

From Ananda’s house, the police seized 11 bags containing 186 kilograms of ganja. The prosecution alleged that Accused Nos. 1 and 2 had supplied this commercial quantity to Ananda about a month prior to their arrest.

Legal Arguments Advanced

Submissions by the Petitioners

Advocate Sri Jagadeesh Murthy, appearing for the petitioners, raised the following points:

• Denial and False Implication: The petitioners, both young laborers from Andhra Pradesh, maintained that they came to Bengaluru to collect unpaid wages from their supervisor and were falsely implicated by beat police officers.
• Intermediate Quantity: The direct recovery from the petitioners’ possession was only 8 kg of ganja, which falls below the commercial threshold.
• Lack of Evidence Linking Commercial Recovery: The prosecution failed to provide documentary proof, transaction details, or transportation evidence connecting the petitioners to the 186 kg of ganja seized from Ananda’s residence.
• Procedural Deficiencies: Mandatory statutory safeguards under Section 50 of the NDPS Act were not complied with during the search.
• Personal Circumstances: The petitioners had no prior criminal antecedents, were the sole breadwinners for their families, and offered to fulfill any bail conditions imposed.

Objections by the Prosecution

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

• Total Seizure Scale: The total quantity involved in the overarching racket was 194 kg of ganja (8 kg direct + 186 kg co-accused recovery), which constitutes a commercial quantity.
• Role as Wholesale Suppliers: The petitioners functioned as primary suppliers bringing bulk ganja from Visakhapatnam to Bengaluru.
• Severity of Punishment: Offences involving commercial quantities under Section 20(B) carry severe sentences, and the release of the petitioners posed a flight risk given their out-of-state residency.

Detailed Judicial Reasoning and Findings

1. Classification of Seized Contraband

The Special Court referred to Ministry of Finance Notification S.O.1055(E) dated October 19, 2001 (Entry No. 55):

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

The court noted that the direct seizure from Accused Nos. 1 and 2 was 8 kilograms, placing their conscious recovery squarely into the intermediate quantity category.

Category	Statutory Threshold	Seizure Source	Legal Implication
Direct Seizure	8 kg	Direct personal search of Accused 1 & 2	Intermediate Quantity
Secondary Seizure	186 kg	Raid at Ananda’s residence (Dec 5)	Commercial (Co-Accused)

2. Disconnect Between Petitioners and Commercial Seizure

Evaluating the prosecution’s attempt to attribute the 186 kg recovery to the petitioners based solely on voluntary statements, the Special Judge highlighted critical evidentiary gaps:

• No documents were produced to establish how the 186 kg of ganja was transported from Visakhapatnam to Ananda’s house.
• No financial or payment records were collected to substantiate the alleged transaction.
• The commercial seizure occurred days after the petitioners were already in police custody.

Consequently, the court held that at the pre-trial stage, only the direct recovery of 8 kg could be considered against the petitioners, freeing them from the strict bar of Section 37 of the NDPS Act.

3. Application of Supreme Court Precedent

The Special Court relied on the Supreme Court judgment in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488]. In that case, the Apex Court held that where the contraband seized is a non-commercial quantity (such as 14 kg of ganja) and the accused has no prior criminal antecedents, the rigors of Section 37 do not apply, and bail should ordinarily be granted under standard principles of Section 439 of Cr.P.C..

4. Completion of Recovery and Trial Safeguards

The court concluded that because the primary incriminatory items directly linked to the petitioners were already seized and their statements recorded, further custodial interrogation was unnecessary. The prosecution’s apprehension regarding flight risk could be addressed through stringent conditions.

Terms and Conditions of the Bail Order

The Special Court allowed Criminal Miscellaneous Petition No. 12021/2022 and ordered that B. Budishti Yadav and Manikumar be enlarged on regular bail upon executing a personal bond of Rs. 1,00,000/- each with two sureties for the like sum, subject to the following conditions:

1. Station Attendance: The petitioners must 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.
2. Jurisdictional Restriction: The petitioners shall not leave the court’s jurisdiction without prior permission.
3. Non-Interference: The petitioners shall not tamper with prosecution witnesses or abscond.
4. Cooperation: The petitioners shall cooperate fully with the Investigating Officer.
5. Prevention of Recidivism: The petitioners shall not commit similar offences or any crime while on bail.
6. Documentation: The petitioners shall furnish their photo ID proofs, local address proofs, and photo ID proofs of their sureties before the court.
7. Court Appearance: The petitioners shall appear before the trial court on all hearing dates.
8. Cancellation Clause: Breach of any condition will result in immediate cancellation of bail.