Bengaluru, December 20, 2022 – The XXXIII Additional City Civil and Sessions Judge & Special Judge (NDPS) in Bengaluru, Smt. B.S. Jayashree, issued a significant order granting bail to an accused involved in the seizure of over 4.5 kilograms of ganja. The ruling, delivered on December 20, 2022, in the case of Crl.Misc.No. 12362/2022, hinged on the determination that the quantum of the seized drug constituted an intermediate quantity, thereby preventing the application of the stringent provisions of the NDPS Act.

The petitioner, Apsar Pasha @ Apsar Basha, aged 41, was arrested in connection with Cr.No.195/2022 registered at Cottonpet Police Station for an offense punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. His counsel, Sri M.V. Murthy, argued for bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.).

The Case and Allegations

The case was initiated based on a complaint filed by the Police Inspector of Cottonpet Police Station. The complaint detailed that on December 12, 2022, at approximately 4:00 PM, the police received a tip-off that a person was illegally selling ganja near the back gate of the City Railway Station. A raid was conducted, leading to the apprehension of the accused, Apsar Pasha.

Upon being informed of his right to a personal search before a Gazetted Officer or Magistrate, the accused consented to a search by a Gazetted Officer. The search yielded 4 kilograms and 578 grams of ganja from a plastic bag carried by the accused. A detailed mahazar (record of seizure) was drawn up, and a case was subsequently registered against the petitioner.

Grounds for Bail and Prosecution’s Opposition

The petitioner’s defense argued that he was innocent, falsely implicated, and a law-abiding citizen. Key arguments included the non-compliance with the mandatory procedural requirements of Sections 41, 42, 50, 52, and 47 of the NDPS Act during the recovery process. The counsel emphasized that the quantity seized was not a commercial quantity, and detention in the central prison could ruin the petitioner’s career. The petitioner affirmed his willingness to abide by any conditions imposed by the court.

The prosecution, represented by the Public Prosecutor, vehemently opposed the bail application. They admitted that the seized amount of 4 Kgs 578 grams was an Intermediate quantity but stressed that the offense still carries a rigorous imprisonment term that can extend from 10 to 20 years. The prosecution argued that there was sufficient prima facie material against the accused, and his release could lead to tampering with witnesses, citing that a drug supplier was still absconding and needed to be traced. Furthermore, the prosecution alleged that the petitioner was involved in selling drugs to the younger generation, which could ruin their careers.

Judicial Reasoning: Intermediate Quantity and Section 37

In her detailed analysis, the presiding Judge addressed the central point of contention: the quantum of the seized narcotic. The court referred to the Ministry of Finance Notification S.O.1055(E) dated October 19, 2001, which governs the classification of quantities under the NDPS Act.

The notification specifies that for ganja, the small quantity is 1,000 grams (1 kg) and the commercial quantity is 20 kilograms.

Based on this, the court unequivocally determined: “In this case the quantum of ganja seized is 4 Kg 578 grams is an intermediate quantity.”

This classification was pivotal, as it allowed the court to bypass the “rigors of Sec.37 of the NDPS Act”. Section 37 imposes strict limitations on bail for offenses involving commercial quantities, requiring the court to record a finding that there are reasonable grounds for believing the accused is not guilty.

To support its finding, the court relied on the judgment of the Hon’ble Apex Court in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), where bail was granted for a non-commercial quantity of 14 kilograms of ganja. The court concluded that when the quantity is less than the commercial quantity, the factors for granting bail become similar to those under regular statutes, making the bail plea of the accused eligible for consideration.

Conclusion of Investigation and Stringent Conditions

The court also noted that the major portion of the investigation is concluded, as the incriminatory article has been seized and the voluntary statement of the accused recorded, thus making further custodial interrogation unnecessary.

Addressing the prosecution’s concern that the accused might abscond, the court held that this apprehension “could be compensated by imposing stringent conditions.”

Accordingly, the petition was allowed. The petitioner, Apsar Pasha, was granted bail upon executing a personal bond for Rs.1,00,000/- with two sureties for the like sum.

The bail was granted subject to the following stringent conditions to ensure cooperation and prevent future offenses:

• The petitioner must report to the concerned Investigating Officer (I.O.) once a month, preferably on the first Monday, between 10:00 am and 2:00 pm, until the charge sheet is filed.
• He is prohibited from leaving the jurisdiction of the court without prior permission.
• He shall not tamper with the witnesses or abscond.
• He must cooperate fully with the I.O. for investigation.
• He shall not commit a similar offense or any other offense while on bail.
• He must furnish his photo ID proof and the photo ID proofs of his sureties.
• He must appear before the court on all hearing dates.
• Any breach of these conditions will automatically lead to the cancellation of bail.

The judgment underscores the importance of the statutory quantity classification under the NDPS Act in the dispensation of justice, ensuring that bail is considered under normal circumstances when a case involves only an intermediate quantity of contraband.