In a notable judicial order passed on March 30, 2024, the XXXIV Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru (CCH-35), Sri G. Raghavendra, B.Sc., LL.M., allowed the anticipatory bail application filed in Criminal Miscellaneous Petition No. 2809/2024. The court granted pre-arrest bail protection to Ravi M (Accused No. 2) in connection with Crime No. 32/2023-24/4309SIE1/430909 registered by the Excise Sub-Inspector, Range-51 (Sarjapura), Sub-Division 16, Bengaluru Urban District-8. The petitioner was facing prosecution for offences punishable under Sections 8(c), 20(b)(ii)(A), and 61 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Factual Matrix and Prosecution Allegations

The criminal law was set into motion on March 5, 2023, at approximately 6:30 PM, when Sri Sandeep S.R., Excise Sub-Inspector (ESI), Range-51 (Sarjapura), was on patrolling duty within Gattahalli village limits. The ESI received telephonic intelligence indicating that an individual speaking Hindi was actively selling ganja in small packets to local customers opposite the Sri Veeranjaneya Temple in Chikkanayakana Halli, Varthur Hobli, Bengaluru East Taluk.

After recording the credible information and informing higher authorities over the phone to obtain necessary authorization, the ESI secured two independent panchas at Chathrimara Dinne Circle. The team proceeded to the temple site and observed a person sitting on a Peepal tree platform. Moments later, another individual arrived, and the person on the platform handed over a plastic cover.

The excise team surrounded both individuals. After recording reasons for an immediate search at the spot under Section 42 of the NDPS Act and exchanging personal searches, officers recovered a black plastic cover containing 33 small packets. Weighing the substance along with the plastic covers yielded a total weight of 230 grams of dry ganja.

Upon interrogation, the apprehended individuals disclosed their personal details. Accused No. 2 (Ravi M) stated that he frequently received ganja from Accused No. 1 for personal consumption. Considering that 230 grams constituted a small quantity under statutory specifications, the ESI issued a notice under Section 41-A of the Code of Criminal Procedure, 1973 (Cr.P.C.) directing their appearance for further investigation. The contraband was seized under a spot seizure mahazar, and the FIR was formally registered upon return to the excise station.

The cause title captures the background details of the petitioner:

• Ravi M (Accused No. 2): Aged 29 years, son of Manjunatha, residing at No. 389, 2nd Main, 5th Cross, Krishnappa Nagar, Halanayakanahalli, Bengaluru.

Arguments Advanced on Behalf of the Petitioner

Appearing on behalf of the applicant, learned advocate Smt. Meenakshi H.V. submitted the following grounds seeking pre-arrest bail protection under Section 438 Cr.P.C.:

• Innocence and False Implication: The petitioner maintained that he was entirely innocent of the alleged offence and had been falsely implicated in the case by the excise authorities.
• Small Quantity Threshold: The defence emphasized that the total recovery of 230 grams of ganja was a small quantity under the NDPS Act and well below the commercial threshold.
• Non-Capital Offence: It was submitted that the alleged offence is not punishable with death or imprisonment for life, but carries a maximum punishment extending up to one year or a fine.
• Apprehension of Arrest: The petitioner expressed a genuine fear of imminent arrest, alleging that excise personnel were actively attempting to track his whereabouts, which would cause severe hardship and humiliation.

Prosecution Objections

The Public Prosecutor filed detailed objections opposing the grant of pre-arrest protection, contending that:

• Prima Facie Involvement: The petitioner was apprehended at the spot receiving contraband ganja for consumption.
• Risk of Re-offending and Witness Tampering: The prosecution expressed apprehension that if enlarged on anticipatory bail, the petitioner might commit similar narcotic offences, tamper with prosecution witnesses, or evade further investigation.

Judicial Analysis and Detailed Legal Reasoning

The Special Court examined the certified documents, statutory provisions, and schedule classifications to determine Point No. 1: whether the petitioner showed sufficient grounds for anticipatory bail.

1. Classification of Contraband Quantity

The court referred to Notification S.O. 1055(E) dated October 19, 2001 (as amended), issued by the Central Government. 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 total ganja recovered from both accused was 230 grams, the court conclusively established that the seized contraband fell within the category of a small quantity.

2. Penalty and Scheme of Trial Under the NDPS Act

The court analyzed Section 20(b)(ii)(A) of the NDPS Act, which prescribes that contraventions involving a small quantity of ganja are punishable with rigorous imprisonment for a term extending up to one year, or with a fine extending up to Rs. 10,000, or both.

Examining the jurisdictional framework:

• Section 36A NDPS Act: Restricts Special Court jurisdiction to offences punishable with imprisonment exceeding three years.
• Schedule II Cr.P.C.: Classifies offences against other laws punishable with less than three years imprisonment as non-cognizable, bailable, and triable by any magistrate.
• Section 37 NDPS Act: Governs cognizable and non-bailable offences.

Harmonizing these provisions, Special Judge Sri G. Raghavendra observed that while the statutory scheme classifies small-quantity offences as non-bailable and triable by a magistrate, the penal consequences are mild (up to one year imprisonment).

3. Protection Under Section 438 Cr.P.C.

The court noted that the investigating officer had already served a notice under Section 41-A Cr.P.C. because the recovery was a small quantity. Acknowledging the petitioner’s apprehension of arrest and holding that prosecution concerns regarding witness tampering or non-appearance could be addressed through standard statutory conditions under Section 437(3) Cr.P.C., the court found the petition deserving of favorable relief.

It remains a settled principle of law that pre-trial bail directions are procedural safeguards and do not reflect an expression on the ultimate merits of the prosecution, which remains subject to trial.

Final Pre-Arrest Bail Order and Conditions

Answering Point No. 1 in the affirmative, Special Judge Sri G. Raghavendra allowed the Criminal Miscellaneous Petition filed under Section 438 Cr.P.C., directing that in the event of arrest in Crime No. 32/2023-24/4309SIE1/430909, Ravi M (Accused No. 2) shall be released on bail subject to the following terms:

1. The petitioner/Accused No. 2 is directed to appear before the Investigation Officer within 15 days from the date of this order.
2. On appearance of the petitioner/Accused No. 2, he shall be released on bail on his furnishing a personal bond for a sum of Rs. 10,000/- (Rupees Ten Thousand only) with one surety for the like sum to the satisfaction of the Investigation Officer.
3. The petitioner/Accused No. 2 shall not threaten or try to tamper with the prosecution witnesses in any manner.
4. The petitioner/Accused No. 2 shall not leave the jurisdiction of the court without prior permission.