In a notable judicial order passed on July 27, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., allowed the bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 7056/2022. The court enlarged Sanjay on regular bail in connection with Crime No. 149/2022 registered by the Wilson Garden Police Station for offences punishable under Sections 8(c) and 20(B) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings commenced following a report submitted by the Police Sub-Inspector (PSI) of Wilson Garden Police Station. According to the prosecution case, on July 11, 2022, at approximately 3:45 PM, the complainant PSI received credible information from an informant that an unknown individual was selling ganja to the public near Sudhamanagara, K.H. Road, Bengaluru.

The officer deputed staff to verify the tip-off. Upon confirmation, a note was entered in the Station House Diary, and permission was obtained from the Assistant Commissioner of Police (ACP) to conduct a raid. The police team arrived at the spot around 4:00 PM and spotted a suspect carrying a bag. Upon inquiry, he admitted to being in possession of ganja and identified himself as Sanjay, aged about 29 years, residing at No. 36, 3rd Main, 2nd Cross, Adugodi Post, L.R. Nagar, Bengaluru.

The police weighed the seized contraband and found it to be 3 kilograms and 104 grams of ganja. A detailed spot seizure panchanama was drawn, and a report was presented before the Station House Officer (SHO), leading to the formal registration of Crime No. 149/2022 under Sections 8(c) and 20(B) of the NDPS Act. The petitioner was arrested, produced before the jurisdictional Magistrate, and remanded to judicial custody.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri K.S.N. presented several grounds seeking his enlargement on regular bail:

• False Implication: It was submitted that the petitioner is innocent, law-abiding, and was falsely planted in the case by the police without having any knowledge of the alleged contraband.
• Non-Commercial Quantity: Defence counsel argued that the seized contraband (3.104 kg of ganja) falls under the non-commercial threshold.
• Procedural Non-Compliance: The defence contended that mandatory procedural safeguards under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the search and recovery process.
• Custody and Absence of Antecedents: It was urged that there are no eyewitnesses testifying to the sale of the contraband, the petitioner has no bad antecedents, and he is the sole breadwinner of his family. Being a permanent resident of the address stated in the cause title, he promised to abide by court conditions and furnish adequate sureties.

Prosecution Objections

The Public Prosecutor strongly opposed the bail petition, raising the following objections:

• Recovery of Contraband: Investigating authorities seized 3 kg 104 grams of ganja directly from the possession of the accused under a detailed spot mahazar following a personal search.
• Gravity and Punishment: The alleged offence carries rigorous imprisonment for a term that may extend up to 10 years along with a fine.
• Apprehension of Absconding: The prosecution argued that a prima facie case exists establishing that the petitioner is a habitual drug dealer who, if released on bail, would abscond and hamper the ongoing investigation.

Judicial Analysis and Court Reasoning

The Special Judge evaluated the rival contentions and prosecution papers on record to decide Point No. 1: whether sufficient grounds were made out for granting bail.

1. Statutory Classification of Contraband

The court examined the Ministry of Finance (Department of Revenue) Notification S.O. 1055(E) dated October 19, 2001 (Entry Sl. No. 55). Under the notification:

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

The court observed that the 3 kg 104 grams of ganja seized in this case falls above 1 kg but well below 20 kg, placing it explicitly in the category of an intermediate quantity.

2. Non-Applicability of Section 37 Rigors and Precedent Analysis

The court underscored that when the seized contraband is less than a commercial quantity, the stringent statutory restrictions on bail under Section 37 of the NDPS Act do not apply. Consequently, the criteria for considering bail revert to standard principles under the regular Cr.P.C. framework, unless exceptional adverse circumstances are demonstrated by the prosecution.

In support of this principle, the court relied on the Supreme Court ruling 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) who had no prior criminal antecedents. Holding that the precedent aptly applied to the present facts, the court held that the petitioner’s bail plea deserved favorable consideration.

3. Investigation Status and Custodial Necessity

The court noted that the major portion of the investigation was already concluded since the incriminatory contraband had been seized and the voluntary statement of the accused recorded. The alleged offence is not punishable with death or imprisonment for life, rendering further custodial interrogation unnecessary. Furthermore, the court held that the prosecution’s apprehension regarding flight risk or trial delay could be effectively compensated by imposing stringent conditions.

It is important to emphasize that a grant of bail at this interlocutory stage is purely a procedural relief and does not amount to a final determination of the accused person’s guilt or innocence, which remains subject to trial.

Final Bail Order and Terms Directing Release

Answering Point No. 1 in the affirmative, Special Judge Smt. B.S. Jayashree allowed the petition filed under Section 439 Cr.P.C. and passed the following order:

The petition filed by the petitioner under Section 439 of Cr.P.C. is hereby allowed. The petitioner, Sanjay, is enlarged on bail in Crime No. 149/2022 of Wilson Garden Police Station on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties for the like sum, subject to the following conditions:

1. The petitioner shall give attendance before the concerned Investigating Officer once a month, preferably on the first Monday of every month between 10.00 AM and 2.00 PM, till filing of the charge-sheet or further orders, whichever is earlier.
2. He shall not leave the jurisdiction of this court without prior permission.
3. He shall not tamper with the witnesses or abscond.
4. He shall co-operate with the Investigating Officer for investigation.
5. He shall not commit a similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and local address proof document before the court along with photo ID proof of his sureties.
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioner would entail cancellation of bail.