In a notable judgment 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 B.R. Hemanth Kumar alias Hemanth (Accused No. 2). Presided over by Smt. B.S. Jayashree, the Special Court delivered its order in Criminal Miscellaneous Petition No. 6562/2022 on July 14, 2022, clarifying that the strict bar under Section 37 of the NDPS Act does not apply to cases involving non-commercial or intermediate quantities of contraband.

Background of the Prosecution Case

The prosecution was initiated following a report submitted by the Police Sub-Inspector of Avalahalli Police Station. According to police records, on June 21, 2022, at approximately 11:15 AM, police received credible intelligence that an individual named Harish alias Guddebadu had stored Ganja in his residence at Bidarahalli Village, Bengaluru East.

Following permission from senior officers, police raided the house and apprehended Accused No. 1. Search operations resulted in the recovery of 1 kilogram and 100 grams of Ganja, which was seized under a formal seizure panchanama. Consequently, Crime No. 237/2022 was registered under Section 20(b) of the NDPS Act.

During custodial interrogation, Accused No. 1 disclosed that he, along with Accused No. 2 (B.R. Hemanth Kumar) and Accused No. 3 (Mahesha), procured Ganja from KR Puram Railway Station to sell locally. Acting on this statement, the police arrested B.R. Hemanth Kumar on June 23, 2022, and remanded him to judicial custody.

Contentions of the Petitioner

Seeking regular bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.), B.R. Hemanth Kumar through his defense counsel argued:

• Allegations of Implication: The petitioner maintained innocence, stating he was falsely implicated solely based on the co-accused’s voluntary statement and had no knowledge of the seized contraband.
• Procedural Violations: The defense contended that mandatory search and seizure procedures under Sections 41, 42, 50, 52, and 47 of the NDPS Act were not followed.
• Intermediate Quantity: The seized quantity (1.1 kg of Ganja) was well below the commercial threshold.
• No Prior Antecedents: The petitioner is a 21-year-old permanent resident of Bengaluru East, the sole breadwinner of his family, and has no prior criminal background.
• Willingness to Comply: He expressed full readiness to abide by court-imposed conditions and furnish reliable solvent sureties.

Objections by the Prosecution

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

• The prosecution contended that 1.1 kilograms of Ganja was recovered in the case and characterized the petitioner as an habitual drug dealer.
• They argued that the offense carries rigorous imprisonment of up to 10 years along with fine penalties.
• Concerns were raised that the petitioner might abscond or hamper ongoing investigations if released on bail.

Court’s Analysis and Legal Precedents

The Special Court analyzed the statutory thresholds for NDPS offenses alongside established judicial precedents.

Classification of Contraband and Applicability of Section 37

According to Notification S.O.1055(E) dated October 19, 2001, issued 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 noted that the seized 1,100 grams (1.1 kg) of Ganja falls in between small and commercial thresholds, placing it in the intermediate quantity category.

The Special Court relied on the Supreme Court ruling in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488], where the Apex Court granted bail in a case involving 14 kg of Ganja (non-commercial quantity) to an accused without criminal antecedents.

Applying this precedent, Judge B.S. Jayashree observed that when the quantity involved is less than commercial, the strict rigors of Section 37 of the NDPS Act do not apply. As a result, the evaluation of the bail application aligns with standard provisions under regular criminal law unless exceptional adverse factors are demonstrated by the state.

Factors Supporting Grant of Bail

1. Recovery Complete: The contraband had already been seized, and major portions of the investigation were concluded, rendering further custodial interrogation unnecessary.
2. Voluntary Statement Recorded: The petitioner’s voluntary statement was already recorded by the police.
3. Punishment Nature: The alleged offense is not punishable by death or life imprisonment.
4. Verifiable Address: The petitioner provided verifiable residential details in Bengaluru, and prosecution concerns regarding trial delays could be managed through stringent conditions.

Terms and Conditions of Bail

Finding sufficient grounds for relief, the court allowed the petition under Section 439 Cr.P.C. B.R. Hemanth Kumar 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 shall 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 a similar offense or any offense while on bail.
6. He must furnish photo ID proof and local address proof for himself and his sureties.
7. He must appear before the court on all hearing dates.
8. Any breach of these conditions will entail cancellation of bail.