In a key 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 N. Tharun Kumar (Accused No. 1) and D. Mahesh (Accused No. 2). The case, registered by the Bandepalya Police Station under Crime No. 142/2022, involves allegations under Section 20(b)(ii)(B) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985. The order re-emphasizes that intermediate quantities of contraband do not attract the strict bail restrictions under Section 37 of the NDPS Act, allowing regular bail principles under the Code of Criminal Procedure (Cr.P.C.) to apply.

Background of the Case

The case commenced on August 8, 2022, when police received credible information at around 8:00 PM regarding individuals selling ganja to the public near Somasandrapalya Lake, opposite Sri Ayyappa Temple Road, Bengaluru.

After informing higher officers and receiving permission, the police team, along with independent witnesses (panchas), proceeded to the location and apprehended two individuals holding a plastic cover. On inquiry, they disclosed their identities as N. Tharun Kumar (24 years) and D. Mahesh (24 years), both residents of Visakhapatnam district, Andhra Pradesh.

A search of the plastic cover revealed ganja weighing 1 kilogram and 980 grams. The contraband was seized under a spot mahazar, and Crime No. 142/2022 was registered. The petitioners were arrested on August 8, 2022, and remanded to judicial custody.

Contentions of the Petitioners

Represented by advocate Sri P. Shivakumar, the petitioners sought regular bail under Section 439 of Cr.P.C. on the following grounds:

• False Implication: The petitioners submitted that they had not committed or involved themselves in the alleged crime and were falsely implicated.
• Procedural Non-Compliance: It was urged that mandatory statutory safeguards under Sections 41, 42, 50, 52, 57, and 47 of the NDPS Act were not complied with during the raid and search.
• Non-Commercial Quantity: The defense pointed out that 1.98 kg of ganja falls below the commercial quantity threshold.
• No Criminal Antecedents: The petitioners had no prior criminal record or bad antecedents.
• Willingness to Abide by Conditions: They expressed readiness to furnish sureties and abide by any conditions imposed by the court.

Objections by the Prosecution

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

• Direct Recovery: The investigating agency seized 1.98 kg of ganja directly from the possession of the petitioners under a spot panchanama.
• Punishment Severity: The alleged offence carries rigorous imprisonment for a term extending up to 10 years along with a fine.
• Apprehension of Flight: The prosecution contended that the petitioners were habitual drug dealers and might abscond or hamper the ongoing investigation if released on bail.

Judicial Findings and Legal Analysis

The presiding judge, Smt. B.S. Jayashree, evaluated the material on record to determine whether sufficient grounds existed to grant bail.

Classification of Ganja Quantity

As per Notification S.O.1055(E) issued by the Ministry of Finance (Department of Revenue) on October 19, 2001 (Sl. No. 55):

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

The court noted that the 1 kg 980 grams of ganja seized from the petitioners falls between 1 kg and 20 kg, placing it in the intermediate quantity category.

Non-Applicability of Section 37 Rigors

Judge B.S. Jayashree observed:

1. Because the seized quantity is an intermediate quantity (less than 20 kg commercial threshold), the strict rigors of Section 37 of the NDPS Act do not apply.
2. The petitioners have no previous criminal antecedents and are not habitual offenders.
3. The major portion of the investigation was concluded since the incriminatory contraband was already seized.
4. The alleged offence is not punishable with death or life imprisonment, making further custodial interrogation unnecessary.
5. Prosecution fears regarding flight risk or trial delay can be adequately addressed through stringent conditions.

Final Order and Terms of Bail

Answering Point No. 1 in the affirmative, the court allowed Crl.Misc.No.8054/2022 on August 23, 2022, ordering the release of N. Tharun Kumar and D. Mahesh on regular bail.

Key Conditions Imposed:

1. Personal Bond: Each petitioner must execute a personal bond for Rs. 1,00,000/- with two sureties for the like sum.
2. Police Station Attendance: The petitioners must report before the 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.
3. Jurisdictional Restrictions: They shall not leave the court’s jurisdiction without prior permission.
4. Non-Interference: They shall not tamper with prosecution witnesses or abscond.
5. Investigation Cooperation: They must fully cooperate with the Investigating Officer.
6. No Re-Offending: They shall not commit similar offences or any crime while on bail.
7. Identity Proof: They must furnish photo ID proof and local address proof documents for themselves and their sureties.
8. Court Appearance: They must appear 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.