Bengaluru, September 8, 2022 – The XXXIII Additional City Civil and Sessions Judge & Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, granted bail to petitioner Azam Pasha (accused No.1) in a case registered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The order, pronounced on September 8, 2022, pertained to Crl.Misc.No.8683/2022, arising from Cr.No.08/2022-23 filed by the State by Inspector of Excise, Munireddy Palya Range.

The petitioner, Azam Pasha, aged 41, son of Ahmed Jaan, had sought bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.) after being arrested for offences punishable under Sections 8(c), 20(b)(ii)(B), and 25 of the NDPS Act. The case stemmed from a raid conducted on August 22, 2022, where the investigating agency claimed to have seized 2 Kgs and 350 grams of Ganja from a petty shop where the accused was apprehended.

Grounds for Bail and Prosecution’s Objection

Counsel for the petitioner, Sri. HSI, argued that Azam Pasha was innocent and falsely implicated, asserting that he had no knowledge of the alleged crime. Key arguments put forth included the non-compliance with mandatory provisions of the NDPS Act, such as Sections 41, 42, 50, 52, and 47, and the assertion that the seized quantity did not constitute a “commercial quantity.” The petitioner stressed his willingness to abide by any conditions imposed by the court and offered surety, noting he was the sole bread earner for his family and had no bad antecedents.

The prosecution, represented by the Public Prosecutor, vehemently objected to the bail plea. They confirmed the seizure of 2 Kgs and 350 grams of Ganja, emphasizing that a detailed mahazar was drawn and a personal search was conducted. The prosecution argued that there was a prima facie case against the petitioner, who was alleged to be a habitual drug dealer, and granting bail would risk him absconding and hampering the investigation. The offence, they noted, is punishable with rigorous imprisonment up to 10 years.

Court’s Analysis on Quantity and Legal Precedent

Upon hearing arguments and reviewing the records, the court framed two points for consideration: whether the petitioner made out sufficient grounds for bail and the final order.

Crucially, the court’s analysis focused on the quantum of the seized contraband. Based on the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001, the court determined the classifications for Ganja: 1,000 grams is classified as “small quantity,” and 20 Kgs is classified as “commercial quantity.”

The court established that the 2 Kgs and 350 grams of Ganja seized from the accused fell into the category of intermediate quantity. This classification proved vital to the outcome of the bail application.

Citing the Hon’ble Apex Court’s decision in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), the court noted that in cases involving non-commercial quantities, the accused should be released on bail pending trial. The cited judgment held that with only 14 Kgs of Ganja (a non-commercial quantity in that context) involved, the appellant should be released on bail, subject to conditions.

Applying this precedent, the Bengaluru court concluded that since the seized contraband was an intermediate quantity and not a commercial quantity, the stringent “rigours of Section 37 of the NDPS Act” would not apply. Section 37 of the NDPS Act imposes harsh restrictions on bail for offences involving commercial quantities, requiring the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and is unlikely to commit any offence while on bail. By ruling that the quantity was intermediate, the court treated the bail petition similar to those under regular statutes, where normal bail factors apply unless exceptional circumstances are pointed out by the prosecution.

Conclusion and Bail Conditions

The court further noted that the major portion of the investigation was concluded, as the incriminatory article had already been seized. It was deemed that further custodial interrogation was not warranted since the voluntary statement of the accused was already recorded. Addressing the prosecution’s fear that the accused might abscond, the court determined this could be mitigated by imposing stringent conditions.

Consequently, the court allowed the petition and ordered the release of Azam Pasha on bail.

The petitioner was enlarged on bail upon executing a personal bond for a sum of Rs. 1,00,000/- with Two sureties for the like sum, subject to the following eight conditions:

1. The petitioner shall attend before the concerned Investigating Officer (I.O.) once a month, preferably on the first Monday of every month between 10:00 AM and 2:00 PM, until the filing of the charge sheet or further orders.
2. He shall not leave the jurisdiction of the court without prior permission.
3. He shall not tamper with the witness or abscond.
4. He shall cooperate with the I.O. 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 local address proof document before the court, along with the photo ID proof of his sureties.
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions would result in the cancellation of bail.

The order was formally pronounced on September 8, 2022, granting relief to Azam Pasha based on the intermediate nature of the seized quantity and judicial precedent.