In a notable order passed on June 7, 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. 6352/2022. The court enlarged Srinivasa C.S. (Accused No. 4) on regular bail in connection with Crime No. 297/2022 registered by the Madanayakanahalli Police Station. The petitioner was 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 law was set into motion following a report submitted by the Police Inspector (PI) of Madanayakanahalli Police Station. According to the prosecution case, on June 21, 2022, at approximately 4:30 PM, the PI received credible information through an informant that at Prabha Nagar, Makali Village, Dasanapura Hobli, outside the shop of one Sathpal in the Hotte Ramanna Building, a worker named Vikas Sharma and four other individuals were engaged in selling ganja.

Upon receiving the tip-off, the PI registered Crime No. 297/2022 against Sathpal, Vikas Sharma, and four unknown persons under Section 20(B) of the NDPS Act. Thereafter, the PI notified superior officers, obtained permission to conduct a raid, and proceeded to the spot with staff and independent panchas in the evening. Mounting surveillance, the police team observed six individuals holding plastic covers attempting to sell ganja to the public, with two individuals standing beside motorcycles.

The police officers surrounded and apprehended all six individuals. An inspection of the plastic covers revealed ganja leaves, stems, flowers, and fruits, which weighed a total of 4 kilograms. The contraband was seized under a spot panchanama. Subsequent interrogation revealed that Accused Nos. 1 and 2 had brought the ganja from Maharashtra and Andhra Pradesh to sell, while Accused Nos. 5 and 6 assisted in packing and distribution. The police arrested Accused Nos. 1 to 6 and produced them before the jurisdictional magistrate, who remanded them to judicial custody.

The petitioner, Srinivasa C.S., aged 31 years, son of Chandrappa, residing at 17th Main, 6th Cross, J.C. Nagar, Kurubarahalli, Bengaluru, was arrayed as Accused No. 4 in the case.

Arguments Submitted by Defence Counsel

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

• False Implication: It was submitted that the petitioner is innocent, a law-abiding citizen, and was falsely planted in the case at the instance of extraneous elements without having any knowledge of the alleged contraband.
• Lack of Specific Overt Act: The defence emphasized that no contraband was directly seized from the personal custody of the petitioner, and no specific overt act of selling or packing was attributed to him.
• Intermediate Quantity Classification: Defence counsel argued that the total quantity of ganja seized (4 kg) falls well below the commercial quantity threshold.
• Procedural Non-Compliance: The defence contended that mandatory statutory safeguards prescribed under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the raid, search, and seizure operations.
• Absence of Antecedents: It was submitted that the petitioner has no bad antecedents and is the sole breadwinner for his family. Being a permanent resident at the address stated in the cause title, he expressed full readiness to abide by court conditions and furnish adequate sureties.

Prosecution Objections

The Public Prosecutor strongly opposed the bail petition, advancing the following arguments:

• Joint Seizure of Contraband: Investigating authorities seized 4 kilograms of ganja from the spot where the accused persons were apprehended together under a detailed mahazar.
• Severity of Punishment: The alleged offence carries rigorous imprisonment for a term extending up to 10 years along with a fine.
• Risk of Absconding and Recidivism: 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 Detailed Legal Reasoning

The Special Court examined the prosecution papers, statutory provisions, and rival contentions to decide Point No. 1: whether the petitioner made out sufficient grounds for regular bail.

1. Classification of Ganja Quantity

The court referred to Entry Sl. No. 55 of Notification S.O. 1055(E) dated October 19, 2001, issued by the Ministry of Finance (Department of Revenue):

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

The court noted that the 4 kilograms of ganja recovered in this case falls between 1 kg and 20 kg, placing it firmly in the category of an intermediate quantity.

2. Lack of Overt Act and Material on Individual Recovery

Upon reviewing the investigation papers, Special Judge Smt. B.S. Jayashree made a crucial finding: while the prosecution alleged that the petitioner accompanied Accused Nos. 1 and 2, there was no specific material or recovery establishing that contraband was seized directly from his individual physical custody, nor was any specific overt act attributed to Accused No. 4.

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

The court emphasized that when the seized contraband is less than a commercial quantity, the strict 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.

To reinforce this legal principle, the Special Judge 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 petitioner’s bail plea deserved favorable consideration.

4. Investigation Progress and Custodial Necessity

The court observed that a major portion of the investigation had concluded since the incriminatory contraband was seized and the voluntary statement of the accused recorded. The alleged offence does not carry penalties of death or life imprisonment, rendering further custodial interrogation unnecessary. Furthermore, the court held that the prosecution’s apprehensions regarding flight risk or trial delay could be effectively compensated by imposing stringent conditions.

It remains a settled principle of criminal jurisprudence that an order granting bail at the pre-trial 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 full-fledged 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, Srinivasa C.S., is enlarged on bail in Crime No. 297/2022 of Madanayakanahalli 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 prosecution 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 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.