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 Rajesh Kumar (Accused). The case, registered by the Excise Police, Attibele Range under Crime No. 04/2022-23, involves offences punishable under Section 20(B)(ii)(b) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985. The order confirms that intermediate contraband quantities do not trigger the strict statutory bar under Section 37 of the NDPS Act, allowing standard bail principles under the Code of Criminal Procedure (Cr.P.C.) to apply.
Background of the Case
The criminal proceedings commenced on July 20, 2022, when the Excise Inspector received credible information at around 3:15 PM (15:15 hours). The tip-off reported that an individual would arrive near the Attibele Bus Stop to sell ganja bhang pills to customers.
After informing higher authorities and securing permission, the Excise team, along with independent witnesses (panchas), raided the location and apprehended the suspect. Upon questioning and personal search, the officers recovered and seized 9 kilograms and 700 grams of ganja bhang pills.
The contraband was seized under a spot seizure panchanama, and Crime No. 04/2022-23 was registered. The petitioner—a 24-year-old resident of Attibele, Anekal Taluk, with a permanent address in Madhubani district, Bihar—was arrested, produced before the jurisdictional Magistrate, and remanded to judicial custody.
Contentions of the Petitioner
Represented by advocate Sri R.V.V.M., Rajesh Kumar filed a bail application under Section 439 of Cr.P.C. urging the following grounds:
- Innocence and False Implication: The petitioner asserted that he was an innocent, law-abiding citizen with no knowledge of the alleged crime and had been falsely implicated at the instance of extraneous elements.
- Procedural Safeguards: It was contended that mandatory provisions under Section 50 of the NDPS Act were not complied with during the search and recovery.
- Intermediate Quantity Classification: The defense emphasized that the seized quantity of 9.7 kg of ganja bhang pills fell below the commercial quantity threshold.
- No Criminal Antecedents: The petitioner stated that he had no bad antecedents and was the sole breadwinner for his family.
- Willingness to Comply: He expressed full readiness to offer sureties and abide by any conditions imposed by the court to secure his release.
Prosecution’s Objections
The prosecution, represented by the Public Prosecutor, strongly opposed the bail petition on the following grounds:
- Seizure of Contraband: The investigating agency seized 9.7 kg of ganja bhang pills directly from the possession of the accused following personal search and spot panchanama.
- Severity of Punishment: The alleged offence carries rigorous imprisonment extending up to 10 years along with a fine.
- Risk of Flight: Alleging that the petitioner was a habitual drug dealer, the prosecution argued that granting bail would risk him absconding and hampering the ongoing investigation.
Judicial Findings and Legal Analysis
The presiding judge, Smt. B.S. Jayashree, evaluated the prosecution records and centered the analysis on whether the contraband quantity triggered the strict bail restrictions 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 700 grams of ganja bhang pills 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 judgment in Birbal Prasad v. State of Bihar (2018 11 SCC 488), where the Apex Court granted bail for possession of 14 kg of ganja (a non-commercial quantity) in the absence of prior criminal records.
Applying this legal principle, Judge B.S. Jayashree observed:
- When the quantity of contraband seized is less than commercial quantity, the strict rigors of Section 37 of the NDPS Act do not apply.
- Factors governing bail revert to regular statutory considerations under the Cr.P.C. unless exceptional adverse circumstances are demonstrated by the prosecution.
- The major portion of the investigation was complete as the incriminatory contraband had already been seized and the petitioner’s voluntary statement recorded.
- The alleged offence does not carry penalties of death or life imprisonment, making further custodial interrogation unnecessary.
- Prosecution fears regarding flight risk or trial delay can be adequately compensated by imposing stringent bail conditions.
Final Order and Terms of Bail
Answering Point No. 1 in the affirmative, the court allowed Crl.Misc.No.7588/2022 on August 10, 2022, ordering the release of Rajesh Kumar on regular bail.
Key Conditions Imposed:
- Personal Bond: The petitioner must execute a personal bond for Rs. 1,00,000/- with two sureties for the like sum.
- 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 filing of the charge sheet or further orders.
- Jurisdictional Restrictions: He shall not leave the court’s jurisdiction without prior permission.
- Non-Interference: He must not tamper with prosecution witnesses or abscond.
- Investigation Cooperation: He must fully cooperate with the Investigating Officer during the investigation.
- No Re-Offending: He shall not commit similar offences or any crime while on bail.
- Identity Verification: He must furnish photo ID proof and local address proof documents for himself and his sureties.
- 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.