In a notable judicial order delivered by the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru, the court allowed the bail application filed by Mohammed Shabeer (Accused No. 1) in connection with a drug possession case registered by the Madiwala Police Station. The ruling highlights key principles governing the classification of contraband under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and clarifies the non-applicability of Section 37 restrictions in cases involving intermediate quantities.

Background of the Case

The criminal law was set into motion on June 6, 2022, when the Police Sub-Inspector (PSI) of Madiwala Police Station and his staff were on patrolling duty, inspecting vehicles at the Madiwala Total Mall junction. At around 9:25 AM, the police spotted a Bajaj Dominar motorcycle bearing registration number KL 51 J 2675 coming from the Ayyappa Temple side toward Madiwala Junction. Neither rider was wearing a helmet.

When officers attempted to intercept the vehicle, the individuals abandoned the motorcycle along with a bag and fled the scene. A search of the abandoned bag revealed 11 kilograms of ganja, which was seized under a spot panchanama. A case was subsequently registered against unknown persons under Crime No. 91/2022 for offences punishable under Section 20(b) of the NDPS Act.

Following investigation into the vehicle ownership documents and intelligence gathering, police identified and apprehended Mohammed Shabeer on July 22, 2022. Based on his voluntary statement, he was arrested and remanded to judicial custody.

Contentions of the Petitioner

Represented by advocate Sri S.K.A., Mohammed Shabeer filed a bail petition under Section 439 of the Code of Criminal Procedure (Cr.P.C.). The grounds raised in support of the bail plea included:

• Absence of Direct Physical Possession: The defense highlighted that no eyewitnesses established actual physical possession of the ganja at the time of seizure, as the bag was recovered from an abandoned motorcycle.
• Innocence and False Implication: The petitioner asserted that he was innocent, hailed from a respectable family, had no bad antecedents, and was the sole breadwinner for his family.
• Quantity Classification: The defense contended that 11 kg of ganja does not constitute a commercial quantity under the NDPS Act.
• Completion of Investigation: Major portions of the investigation were complete, making further custodial interrogation unnecessary.
• Willingness to Comply: The petitioner expressed full readiness to furnish sureties and abide by any court-imposed conditions.

Objections by the Prosecution

The prosecution, represented by the Public Prosecutor, strongly opposed the bail petition on the following grounds:

• Seizure of Contraband: Investigating officers seized 11 kg of ganja under a detailed spot mahazar.
• Severity of Punishment: The alleged offence carries rigorous imprisonment for a term extending up to 10 years along with a fine.
• Risk of Absconding: Alleging that the petitioner was a habitual drug dealer, the prosecution expressed apprehension that releasing him on bail would lead to absconding and hampering the ongoing investigation.

Legal Analysis and Findings of the Court

The presiding judge, Smt. B.S. Jayashree, evaluated the record and focused on whether the contraband quantity triggered the strict statutory bar against bail under Section 37 of the NDPS Act.

Classification of Contraband Quantity

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

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

In the present case, the seized quantity of 11 kg fell between 1 kg and 20 kg, explicitly categorizing it as an intermediate quantity.

Applicability of Precedents and Section 37 NDPS Act

The court relied on the landmark Supreme Court decision in Birbal Prasad v. State of Bihar (2018 11 SCC 488), where the Apex Court granted bail to an accused found in possession of 14 kg of ganja (a non-commercial quantity), noting the absence of prior involvement in other cases.

Applying this precedent, Judge B.S. Jayashree observed:

1. When the quantity involved is less than commercial quantity, the strict rigors of Section 37 of the NDPS Act do not apply.
2. The evaluation of bail reverts to regular statutory principles governing non-commercial offences under the Cr.P.C., unless exceptional adverse circumstances are established by the prosecution.
3. Major portions of the investigation were concluded, and the incriminatory material had already been seized.
4. The alleged offence does not carry a penalty of death or life imprisonment, rendering further custodial interrogation unnecessary.
5. Concerns regarding trial delay or flight risk can be adequately mitigated by imposing stringent bail conditions.

Final Order and Conditions Imposed

Answering Point No. 1 in the affirmative, the court allowed Crl.Misc.No.7509/2022 on August 8, 2022, ordering the release of Mohammed Shabeer on bail subject to the following terms:

1. Bail Bond: Execution of a personal bond for Rs. 1,00,000/- with two sureties for a similar sum.
2. Police Attendance: Reporting to the Investigating Officer once a month, preferably on the first Monday between 10:00 AM and 2:00 PM, until the charge sheet is filed or further orders are issued.
3. Jurisdiction Restrictions: Refraining from leaving the court’s jurisdiction without prior permission.
4. Non-Interference: Refraining from tampering with prosecution witnesses or absconding.
5. Investigation Cooperation: Fully cooperating with the Investigating Officer during investigation.
6. No Re-offending: Refraining from committing similar or other offences while on bail.
7. Identity Verification: Submitting photo ID proof for himself and his sureties.
8. Court Appearance: Appearing before the court on all scheduled hearing dates.

The court explicitly noted that any breach of these conditions would entail immediate cancellation of the bail.