In a significant judicial order delivered on July 29, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., rejected the bail petition filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 6653/2022. The court refused to grant regular bail to Sunil @ Sundele (Accused No. 1) in connection with Crime No. 92/2022 registered by the Viveknagar Police Station for offences punishable under Sections 20(B) and 25 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings were set into motion following a report submitted by the Police Inspector (PI) of Viveknagar Police Station. According to the prosecution case, on June 23, 2021, at approximately 10:30 AM, the complainant PI received credible information while discharging duties at the police station that a person was selling ganja to customers from a two-wheeler at an empty plot beside Prestige Apartment, St. Bed Layout, Koramangala, Bengaluru.

After communicating the information to his superior officer and obtaining necessary permission to conduct a raid, the PI along with police staff and independent panchas proceeded to the spot. The police team identified and apprehended the suspect at the scene. Upon enquiry, he disclosed his identity as Sunil @ Sundele, aged about 23 years, residing at No. 101, Vannarpet, Viveknagar Post, Bengaluru.

A personal search of the accused and search of his vehicle yielded a total recovery of 21 kilograms and 900 grams of ganja carried in a bag. The police seized the contraband under a spot seizure mahazar, arrested the accused, and prepared a detailed report for submission to the Station House Officer (SHO). Based on this report, Crime No. 92/2022 was registered under Sections 20(B) and 25 of the NDPS Act, and the accused was remanded to judicial custody.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri G.N. presented the following grounds seeking enlargement on regular bail:

• Claim of Innocence and False Implication: It was contended that the petitioner is an innocent, law-abiding citizen who was falsely planted in the case by the complainant police and had no knowledge of the seized contraband.
• Quantity Classification: The defence argued that the seized contraband did not constitute a commercial quantity.
• Procedural Non-Compliance: The defence submitted that mandatory statutory provisions under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the search, recovery, and seizure operations.
• Personal Circumstances and Undertaking: It was urged that the alleged offences are neither punishable with death nor life imprisonment. The petitioner, being a permanent resident of the address specified in the cause title, expressed readiness to abide by all court conditions and furnish adequate sureties for his due appearance.

Prosecution Objections

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

• Commercial Quantity Seizure: Investigating authorities seized 21 kg 900 grams of ganja directly from the possession and vehicle of the accused. Under statutory notifications, 20 kilograms constitutes the threshold for commercial quantity, thereby attracting the strict statutory rigors of the NDPS Act.
• Severity of Punishment: The alleged offences carry a mandatory sentence of rigorous imprisonment for a term which shall not be less than 10 years and may extend up to 20 years, along with a fine.
• Public Interest and Risk of Recidivism: The prosecution submitted that the investigation was ongoing and expressed grave apprehension that if released on bail, the petitioner would re-engage in selling narcotic drugs to the younger generation, tamper with prosecution witnesses, and abscond.

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 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.

Since the quantity seized from the petitioner weighed 21 kilograms and 900 grams, the court conclusively established that it exceeded the 20 kg threshold, placing it firmly in the commercial quantity category.

2. Mandatory Twin Conditions Under Section 37 NDPS Act and Precedents

The court emphasized that for offences involving commercial quantities, Section 37 of the NDPS Act imposes mandatory twin conditions: bail cannot be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.

To reinforce this legal standard, Special Judge Smt. B.S. Jayashree referred to several authoritative Supreme Court precedents:

• Union of India v. Mohammed Nawaz Khan (Crl. Appeal No. 1043/2021, dated Sept 22, 2021): The Apex Court highlighted that stringent parameters are prescribed under the NDPS Act to curb drug trafficking. The Supreme Court set aside a High Court bail order, observing that findings on direct physical possession or procedural arguments under Section 42 do not absolve courts from rigorous scrutiny under Section 37(1)(b)(ii).
• State of Kerala v. Rajesh [(2020) 12 SCC 122]: The Supreme Court held that “reasonable grounds” means something more than prima facie grounds and requires substantial probable causes for believing the accused is not guilty. The Apex Court cautioned that a liberal approach in granting bail under the NDPS Act is completely uncalled for.
• State of M.P. v. Kajad [(2001) 7 SCC 673]: The Supreme Court affirmed that under Section 37(1)(b)(ii), negation of bail is the rule and its grant an exception.
• Babua v. State of Orissa [(2001) 2 SCC 566]: The Apex Court ruled that individual liberty must be balanced against societal interest. Given the lethal impact of drug trafficking on society, keeping accused persons behind bars during trial is justified when prima facie material exists.

3. Application of Law to Present Facts

Applying these dictums, the court noted that 21 kg 900 grams of ganja was seized directly under a spot panchanama from the accused while he was transporting it in a bag on a two-wheeler. The defence failed to place any material on record to demonstrate that the petitioner was not in conscious possession of the contraband at the time of search and apprehension.

Finding strong prima facie material establishing the petitioner’s involvement in a commercial quantity drug offence, the court held that the mandatory conditions under Section 37 were not satisfied. The court clarified that an order refusing bail at the interlocutory stage is purely an evaluation of prima facie materials and does not amount to a final determination of guilt or innocence, which remains subject to full-fledged trial.

Final Order

Answering Point No. 1 in the negative, Special Judge Smt. B.S. Jayashree formally rejected the bail petition on July 29, 2022:

The petition filed by the petitioner, Sunil @ Sundele, under Section 439 of Cr.P.C. is hereby rejected.