In a notable order passed on August 1, 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. 7401/2022. The court enlarged Shabaz (Accused No. 1) on regular bail in connection with Crime No. 97/2022 registered by the Bannerghatta Police Station. The petitioner was facing prosecution for offences punishable under Sections 8(c) and 20(b)(ii)(A) 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 Sub-Inspector (PSI) of Bannerghatta Police Station. According to the prosecution case, on May 17, 2022, at approximately 11:30 AM, the complainant PSI received credible information that two individuals were moving in a suspicious manner and selling ganja at Kaggalipura, Bannerghatta Main Road, Bilwaradahalli Gate.

Upon receiving the information, the PSI notified superior officers, obtained permission to conduct a raid, and proceeded to the spot along with staff and independent panchas. The police team intercepted and apprehended the suspects. During a personal search, the officers recovered and seized 450 grams of ganja. A detailed seizure panchanama was drawn at the spot.

Based on the complainant’s report, Crime No. 97/2022 was registered under Sections 8(c) and 20(b)(ii)(A) of the NDPS Act against Accused Nos. 1 and 2. The petitioner, Shabaz, aged 22 years, son of Ajaz Pasha, residing next to Puttamma’s Property, Bilwaradahalli, Jigani Hobli, Anekal Taluk, was arrayed as Accused No. 1. He was arrested on May 17, 2022, produced before the jurisdictional magistrate, and remanded to judicial custody.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri Shaik Ali presented several grounds seeking enlargement on regular bail:

• False Implication and Lack of Eye Witnesses: It was submitted that the petitioner is innocent, had come to the area for job-related work, and was falsely implicated by the police for statistical purposes. The defence urged that the voluntary statement was recorded per police whims and no eye witnesses testified to any actual sale of contraband.
• Small Quantity Classification: The defence emphasized that the seized quantity of 450 grams of ganja falls strictly under the statutory threshold for a “small quantity,” making the offence triable by a magistrate and punishable with imprisonment extending up to one year.
• Procedural Non-Compliance: The defence contended that mandatory procedural safeguards prescribed under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the raid, search, and recovery operations.
• Absence of Criminal Antecedents: It was submitted that the petitioner hails from a respectable family, has no bad antecedents or prior convictions, and is the sole breadwinner for his family. Being a permanent resident, he promised to abide by court conditions and furnish adequate sureties.

Prosecution Objections

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

• Recovery of Contraband: Investigating authorities seized 450 grams of ganja directly from the physical possession of the accused under a detailed spot panchanama.
• Severity of Punishment: The alleged offence carries rigorous imprisonment for a term extending up to 1 year 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 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 450 grams of ganja recovered in this case is below 1,000 grams, placing it explicitly in the category of a small quantity.

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

The court emphasized that when the seized contraband is less than a commercial quantity—and specifically a small 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 a non-commercial quantity of ganja 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.

3. Absence of Antecedents and Custodial Necessity

The court observed that the petitioner had been in judicial custody since May 17, 2022, had no previous criminal antecedents, and was not a habitual offender. A major portion of the investigation had concluded as the incriminatory article had already been seized. The alleged offence is not punishable with death or life imprisonment, rendering further custodial interrogation unnecessary. Furthermore, the court held that the prosecution’s apprehensions regarding flight risk could be effectively compensated by imposing 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, Shabaz, is enlarged on bail in Crime No. 97/2022 of Bannerghatta Police Station on executing a personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety for the like sum, subject to the following conditions:

1. He shall not leave the jurisdiction of this court without prior permission.
2. He shall not tamper with prosecution witnesses or abscond.
3. He shall not commit a similar offence or any offence while on bail.
4. He shall furnish his photo ID proof and photo ID proof of his sureties.
5. Breach of any of the conditions by the petitioner would entail cancellation of bail.