In an important legal ruling regarding the applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the Special NDPS Court in Bengaluru has granted bail to 24-year-old Kumar, alias Gandu Kumar. Smt. B.S. Jayashree, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases, delivered the order in Criminal Miscellaneous Petition No. 6786/2022, holding that the seizure of 2 kilograms and 50 grams of ganja constitutes an intermediate quantity, thereby removing the statutory bar against the grant of bail.
The case against the accused originated from a law enforcement operation carried out by the Bellanduru Police Station. On July 3, 2022, around 8:30 AM, a Police Sub-Inspector on patrolling duty near the Ayyappa Swamy Temple in Bogenahalli observed three individuals carrying gunny bags and allegedly attempting to sell illicit substances to members of the public. After securing police backup, officers apprehended the individuals, who disclosed their names and addresses upon questioning. A personal search conducted by the police team led to the recovery of 2 kilograms and 50 grams of ganja. The police seized the contraband under a spot panchanama, arrested the suspects, and registered Crime No. 155/2022 (noted as Crime No. 115/2022 in the police report summary) under Section 20(B) of the NDPS Act. The petitioner was formally arrayed as Accused No. 3 and subsequently remanded to judicial custody by the jurisdictional Magistrate.
Represented by advocate Sri R.C., the petitioner filed a bail petition under Section 439 of the Code of Criminal Procedure. The defense submitted that Kumar was a law-abiding citizen who was falsely implicated by police authorities at the instance of extraneous elements. Counsel contended that the police failed to comply with mandatory statutory safeguards governed under Sections 41, 42, 47, 50, and 52 of the NDPS Act. It was further submitted that no independent eyewitnesses had attested to any actual sale of contraband, that the quantity of drug involved was non-commercial, and that the petitioner had no bad antecedents and served as the sole breadwinner for his family.
The prosecution, represented by the Public Prosecutor, filed formal objections opposing the bail application. The State asserted that 2.05 kilograms of ganja was seized directly from the possession of the accused, an offense punishable with rigorous imprisonment for a term extending up to 10 years along with financial penalties. The prosecution argued that there existed a strong prima facie case against the petitioner, labeling him a habitual drug dealer and expressing apprehension that he might abscond, tamper with prosecution witnesses, or disrupt ongoing investigations if enlarged on bail.
Delivering the judgment on July 15, 2022, Judge B.S. Jayashree evaluated the statutory limits governing narcotic drug quantities in India. Pursuant to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated October 19, 2001 (Entry No. 55), up to 1,000 grams (1 kg) of ganja is defined as a small quantity, while 20 kilograms constitutes a commercial quantity. Consequently, the court held that the 2 kilograms and 50 grams recovered in the present case falls under the intermediate quantity category.
Relying on the precedent set by the Supreme Court of India in Birbal Prasad v. State of Bihar (2018 11 SCC 488), the Special Judge observed that when the quantity of contraband seized is less than the commercial threshold, the strict conditions imposed by Section 37 of the NDPS Act do not apply. In such non-commercial or intermediate cases, the standard considerations governing regular bail applications apply, unless the prosecution demonstrates exceptional adverse circumstances.
The court highlighted that the incriminatory contraband had already been recovered, the voluntary statement of the accused had been recorded, and the major portion of the investigation was complete. Because the offense is not punishable with death or life imprisonment, the court concluded that further custodial interrogation was unwarranted. Addressing the prosecution’s concerns regarding flight risk, the court determined that strict conditions could adequately safeguard the integrity of the upcoming trial.
Allowing the petition, the court answered Point No. 1 in the affirmative and ordered the release of Kumar @ Gandu Kumar on bail upon executing a personal bond of Rs. 1,00,000 with two sureties for the like sum. The court attached several mandatory conditions: the petitioner must mark his attendance at the concerned police station once a month on the first Monday until the charge sheet is filed, refrain from leaving the court’s territorial jurisdiction without prior permission, co-operate with the investigating officer, furnish local address and identity documents along with those of his sureties, abstain from committing any similar offenses while on bail, and attend all scheduled court hearing dates, with any breach leading to immediate cancellation of bail.