In a notable judicial order passed on July 19, 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. 6732/2022. The court enlarged Shubham Thandi (Accused No. 1) and Yusuf Khan (Accused No. 2) on regular bail in connection with Crime No. 285/2022 registered by the Banaswadi Police Station. The petitioners were facing prosecution for offences punishable under Section 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 Banaswadi Police Station. According to the prosecution case, on July 7, 2022, at approximately 8:45 AM, the complainant PSI received credible information while on patrolling duty from an informer that two unknown individuals were selling ganja on Auto Stand Road towards Janakirama Layout near Banaswadi Railway Station, Bengaluru.

After intimating the credible information to his superior officer and obtaining permission to conduct a raid, the PSI proceeded to the spot with his staff and independent panchas at 9:00 AM. The police team identified and apprehended both suspect individuals, who disclosed their names and addresses upon enquiry:

• Shubham Thandi (Accused No. 1): 26 years, son of Siman Thandi, residing at Digseera Village, Kesinga Thana, Kalahandi District, Odisha.
• Yusuf Khan (Accused No. 2): 28 years, son of Ayub Khan, residing at No. 326, ‘B’ Block, 8th Cross, Janakiram Layout, Lingarajapuram, Bengaluru.

Search of the bag carried by the accused yielded 5 kilograms of ganja. The police seized the contraband under a spot seizure panchanama, prepared a detailed report, and submitted it to the Station House Officer (SHO). Based on this report, Crime No. 285/2022 was registered under Section 20(B) of the NDPS Act. The petitioners were formally arrested, produced before the jurisdictional Magistrate, and remanded to judicial custody.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioners, learned advocate Sri N.P. presented several grounds seeking their enlargement on regular bail:

• False Implication: It was submitted that the petitioners are innocent, law-abiding citizens, and were falsely planted in the case at the instance of extraneous elements without having any knowledge of the alleged contraband.
• Non-Commercial Quantity: Defence counsel argued that the seized contraband (5 kg of ganja) falls under the intermediate, non-commercial quantity threshold.
• Procedural Non-Compliance: The defence contended that mandatory provisions under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the search and recovery process.
• Custody and Residence Verification: It was urged that the petitioners are permanent residents at the addresses stated in the cause title, promised to abide by all court conditions, and were ready to furnish adequate sureties for their due appearance.

Prosecution Objections

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

• Recovery of Contraband: Investigating authorities seized 5 kilograms of ganja directly from the joint possession of the accused under a detailed spot mahazar following a 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 petitioners are habitual drug dealers who, if released on bail, would abscond, tamper with prosecution evidence, and continue selling narcotic drugs.

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 5 kilograms 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 applied directly to the present facts, the court held that the petitioners’ 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 statements 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 persons’ 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 petitioners under Section 439 of Cr.P.C. is hereby allowed. The petitioners, Shubham Thandi and Yusuf Khan, are enlarged on bail in Crime No. 285/2022 of Banaswadi Police Station on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) each with two sureties for the like sum, subject to the following conditions:

1. The petitioners 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 charge sheet or further orders, whichever is earlier.
2. They shall not leave the jurisdiction of this court without prior permission.
3. They shall not tamper with the witness or abscond.
4. They shall co-operate with I.O for investigation.
5. They shall not commit similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and local address proof document before the court and photo ID proof of his sureties.
7. They shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioners, would entail cancellation of bail.