In a significant 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 Prathik Thiwari (Accused No. 1). The case, registered by the Basavanagudi Police Station under Crime No. 120/2022, involves allegations under Sections 8(c) and 20(B) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985. The order reaffirms established legal principles regarding the classification of drug quantities, confirming that intermediate contraband quantities do not attract the strict bail restrictions under Section 37 of the NDPS Act.

Background of the Case

The criminal proceedings commenced on July 20, 2022, when the Police Sub-Inspector (PSI) of Basavanagudi Police Station received credible information at around 4:00 PM while on patrolling duty near APS College, V.V. Road, Bengaluru. An informant reported drug trafficking by an unknown individual near the playground at Armugam Circle, Basavanagudi.

After notifying superior officers and securing permission, the police team, accompanied by independent witnesses (panchas), raided the location at 4:15 PM and apprehended the suspect. The individual identified himself as Prathik Thiwari, aged 23, residing in Hoodi Circle, Whitefield Road, Bengaluru, with a permanent address in Kanpur district, Uttar Pradesh.

A personal search of the petitioner yielded 1 kilogram and 800 grams of ganja. The contraband was seized under a spot mahazar, and Crime No. 120/2022 was registered. The petitioner was arrested and remanded to judicial custody. During subsequent investigation and based on the voluntary statement of Accused No. 1, police arrested Accused No. 3 on July 21, 2022, seizing an additional 7 kilograms and 500 grams of ganja from his possession, bringing the total seizure in the case to 9 kilograms and 300 grams.

Contentions of the Petitioner

Represented by advocate Sri M.A., Prathik Thiwari filed a bail petition under Section 439 of the Code of Criminal Procedure (Cr.P.C.) seeking regular bail. The primary grounds urged included:

• Innocence and Lack of Physical Possession: The petitioner asserted he was innocent, hailed from a respectable family, and that no eyewitnesses established actual physical possession of the contraband.
• Procedural Non-Compliance: It was contended that mandatory statutory safeguards under Sections 41, 42, 50, 52, and 47 of the NDPS Act were not complied with during search and recovery.
• Classification of Quantity: The defense emphasized that the overall seized quantity of ganja fell into the intermediate quantity category and did not constitute a commercial quantity.
• No Criminal Antecedents: The petitioner had no prior criminal record or bad antecedents and was the sole breadwinner for his family.
• Willingness to Comply: The petitioner expressed full readiness to offer sureties and abide by all stringent bail conditions imposed by the court.

Prosecution’s Objections

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

• Total Seizure: Investigating authorities seized a total of 9 kg 300 grams of ganja across the arrested accused persons (1.8 kg from Accused No. 1 and 7.5 kg from Accused No. 3).
• Severity of Punishment: The alleged offences carry rigorous imprisonment extending up to 10 years along with a fine.
• Risk of Absconding: Alleging that the petitioner was a habitual drug dealer, the prosecution argued that granting bail would risk him absconding or hampering the investigation.

Judicial Findings and Legal Analysis

The presiding judge, Smt. B.S. Jayashree, evaluated the prosecution records and focused on whether the contraband quantity triggered the strict bail requirements under Section 37 of the NDPS Act.

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 observed that the total recovery of 9 kg 300 grams of ganja falls between 1 kg and 20 kg, placing it firmly in the intermediate quantity category.

Applicability of Precedents and Section 37 NDPS Act

The court relied on the Supreme Court ruling in Birbal Prasad v. State of Bihar (2018 11 SCC 488), where bail was granted for possession of 14 kg of ganja (a non-commercial quantity) in the absence of prior criminal records.

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

1. When the quantity of contraband is less than commercial quantity, the strict rigors of Section 37 of the NDPS Act do not apply.
2. Bail considerations for non-commercial quantities revert to regular statutory principles under the Cr.P.C. unless exceptional circumstances exist.
3. The major portion of the investigation was complete as the incriminatory contraband had already been seized.
4. The alleged offence does not carry a penalty of death or life imprisonment, making further custodial interrogation unnecessary.
5. Prosecution fears regarding flight risk or trial delay can be adequately compensated by imposing stringent conditions.

Final Order and Terms of Bail

Answering Point No. 1 in the affirmative, the court allowed Crl.Misc.No.7522/2022 on August 8, 2022, ordering the release of Prathik Thiwari on regular bail.

Terms and Conditions Imposed:

1. Personal Bond: The petitioner must execute a personal bond for Rs. 1,00,000/- with two sureties for the like sum.
2. Police Station Attendance: He must report before 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. Jurisdictional Restrictions: He shall not leave the jurisdiction of the court without prior permission.
4. Non-Interference: He must not tamper with prosecution witnesses or abscond.
5. Investigation Cooperation: He must fully cooperate with the Investigating Officer during the investigation.
6. No Re-Offending: He shall not commit similar offences or any crime while on bail.
7. Identity Verification: He must furnish photo ID proof for himself and his sureties.
8. Court Appearance: He 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.