In a notable judicial order passed on August 12, 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. 7564/2022. The court enlarged Ashok Kumar (Accused No. 1) and Mallikarjunaiah (Accused No. 2) on regular bail in connection with Crime No. 53/2022 (initially registered under Crime No. 69/2022) of Thyamagondlu 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 a Police Constable attached to the Thyamagondlu Police Station who was on crime duty. According to the prosecution case, on July 22, 2022, at around 4:15 PM, the constable submitted a report stating that while proceeding near Kuntubommanahalli Manne in connection with another case at approximately 4:00 PM, he noticed two individuals moving suspiciously on a TVS XL moped holding a bag near the Anjaneya Swamy Temple, Muddalingahalli, Thyamagondlu Hobli railway station.

The crime police conveyed the information to the Station House Officer (SHO), leading to the initial registration of Crime No. 69/2022 against unknown persons under Section 20(B) of the NDPS Act. Thereafter, the complainant Police Sub-Inspector (PSI) submitted a requisition to superior officers and obtained formal permission to conduct a raid.

Upon reaching the spot, the police team intercepted two persons riding a TVS XL two-wheeler bearing registration number KA 11 EB 4365 carrying a bag. Upon enquiry, the individuals disclosed that the bag contained ganja leaves which they had cultivated in the land of one Appayanna about two months prior and were transporting for illegal sale. A physical inspection revealed ganja leaves, seeds, and stems with roots, emitting a pungent odor, weighing a total of 4 kilograms and 500 grams. The police seized the contraband under a spot seizure mahazar, arrested both individuals, produced them before the jurisdictional court, and secured their remand to judicial custody.

The cause title captures the personal details of the petitioners:

• Ashok Kumar (Accused No. 1): Aged 35 years, son of Javara Hanumaiah, residing at Benachanahalli, Sompura Hobli, Nelamangala, Bengaluru Rural District.
• Mallikarjunaiah (Accused No. 2): Aged 52 years, son of late Hanumaiah, residing at Benachanahalli, Sompura Hobli, Nelamangala, Bengaluru Rural District.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioners, learned advocate Sri M.D.G. 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 by the complainant police without having any knowledge of the alleged contraband.
• Intermediate Quantity Classification: Defence counsel argued that the seized contraband (4.5 kg of ganja plants and leaves) falls strictly within the non-commercial (intermediate) quantity framework under the NDPS Act.
• 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, recovery, and raid operations.
• Custody and Local Roots: It was urged that the petitioners are permanent residents at the address stated in the cause title and promised to abide by all court conditions and 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 4 kg 500 grams of ganja plants, leaves, seeds, and stems directly from the custody of the accused under a detailed spot panchanama.
• Severity of Punishment: The alleged offence carries rigorous imprisonment for a term that may extend up to 10 years along with a fine.
• Risk of Absconding and Re-Offending: The prosecution contended that a prima facie case exists against the petitioners, alleging they are habitual drug dealers who, if released on bail, would abscond, tamper with prosecution evidence, and continue selling illicit narcotic drugs.

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 petitioners made out sufficient grounds for regular bail.

1. Classification of Ganja Quantity

The court referred to Notification S.O. 1055(E) dated October 19, 2001, issued by the Ministry of Finance (Department of Revenue). Under Entry 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 4.5 kilograms of ganja recovered in this case exceeds 1 kg but remains far below 20 kg, placing it explicitly in the category of an intermediate quantity.

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

The Special Judge 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 established by the prosecution.

To reinforce this legal principle, Special Judge Smt. B.S. Jayashree relied on the binding Supreme Court precedent in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488]. In that decision, 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 ruled that the petitioners’ bail plea deserved favorable consideration.

3. Investigation Progress and Custodial Necessity

The court noted that a 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 under Section 20(B) is not punishable with death or imprisonment for life, 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 bail conditions.

It remains a settled principle of criminal law that an order granting or refusing bail at the pre-trial stage is purely a procedural determination and does not amount to a final determination of the accused persons’ guilt or innocence, which remains subject to full-fledged trial.

Final Bail Order and Imposed Conditions

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, Ashok Kumar and Mallikarjunaiah, are enlarged on bail in Crime No. 53/2022 of Thyamagondlu 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.