NDPS Bail Granted: Court Rules 4.05 Kgs of Ganja is Not a Commercial Quantity, Softening Bail Conditions

In a significant order, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS) in Bengaluru, Smt. B.S. Jayashree, granted bail to an accused person in a case involving the seizure of 4 kilograms and 50 grams (4.05 Kgs) of Ganja. The court’s decision, dated September 2, 2022, hinged on the crucial legal distinction between ‘intermediate quantity’ and ‘commercial quantity’ under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The ruling emphasizes that the stringent conditions for bail under Section 37 of the NDPS Act are not attracted when the quantity seized is less than the specified commercial limit.

Case Background and Charges

The petitioner, identified as Ajay Kumar Behera, a 32-year-old resident of Bihar, had filed a petition under Section 439 of the Criminal Procedure Code (Cr.P.C.) seeking regular bail. He was arrested in connection with Cr. No. 229/2022 registered at the Mahadevapura Police Station, Bengaluru, for the offence punishable under Section 20(b) of the NDPS Act.

The prosecution’s case originated from a police patrol on August 3, 2022, when a Sub-Inspector (PSI) received a credible tip-off about a person selling Ganja near B. Narayanapura Ring Road. A raid was conducted, leading to the apprehension of the petitioner and the seizure of 4 Kgs and 50 grams of Ganja. Following the arrest, the accused was produced before the jurisdictional Magistrate and remanded to judicial custody.

Arguments for Bail

The counsel for the petitioner argued for bail on the following grounds:

• Innocence and False Implication: The petitioner asserted that he was innocent, a law-abiding citizen, had no knowledge of the alleged crime, and was falsely implicated or “implanted” in the case by extraneous elements.
• Non-Compliance of Mandatory Provisions: It was contended that the police had failed to comply with the mandatory procedural safeguards prescribed under Sections 41, 42, 50, 52, and 47 of the NDPS Act during the search and seizure operation.
• Quantity is Not Commercial: The seized quantity did not fall under the category of commercial quantity, which attracts the harshest penalties and the most rigorous bail conditions.
• Low Flight Risk: The petitioner claimed to be a permanent resident of the address provided and the sole bread earner of his family, offering to abide by any conditions imposed by the court.

Prosecution’s Opposition

The Public Prosecutor strongly opposed the bail application, arguing that a prima facie case was established against the petitioner, citing the seizure of 4 Kgs, 50 grams of Ganja from his possession.

• Heinous Offence and Punishment: The offence alleged is punishable with rigorous imprisonment up to 10 years and a fine, classifying it as a serious crime.
• Risk Factors: The prosecution submitted that the accused was a habitual drug dealer and, if granted bail, would likely abscond, tamper with evidence, or threaten witnesses, thereby hampering the ongoing investigation.

The Court’s Reasoning and Ruling

The core of the court’s decision rested on the classification of the seized Ganja quantity:

1. The Quantity Factor: Intermediate vs. Commercial

The court meticulously analyzed the quantum of the contraband against the threshold limits defined in the Ministry of Finance Department of Revenue Notification S.O. 1055(E) dated October 19, 2001.

• Small Quantity for Ganja is defined as 1000 grams (1 Kg).
• Commercial Quantity for Ganja is defined as 20 Kgs.
• The seized quantity of 4 Kgs, 50 grams falls squarely into the intermediate quantity category—a quantity lesser than commercial but greater than small quantity.

2. Non-Applicability of Section 37 Rigors

The court unequivocally held that since the quantity was intermediate quantity (less than commercial quantity), the rigors of Section 37 of the NDPS Act will not attract. Section 37 imposes strict twin conditions for bail in cases involving commercial quantity, requiring the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offence while on bail. By removing this legislative barrier, the bail application was considered under the normal principles of the Code of Criminal Procedure.

3. Reliance on Apex Court Precedent

The Special Judge cited the Supreme Court decision in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), where the apex court granted bail involving 14 Kgs of Ganja, which was classified as a non-commercial quantity. The court found this precedent to be “aptly applicable” to the case on hand.

4. Investigation Status and Custodial Need

The court further noted that the major portion of the investigation is concluded, with the incriminating article already seized. Since the offence is not punishable with death or life imprisonment, further custodial interrogation is not warranted. The accused’s voluntary statement was already recorded, and any apprehension regarding him absconding or protracting the trial could be “compensated by imposing stringent conditions.”

Bail Conditions Imposed

Based on these findings, the court answered the point for consideration in the affirmative and allowed the bail petition. The petitioner, Ajay Kumar Behera, was enlarged on bail on executing a personal bond for a sum of ₹1,00,000/- (One Lakh Rupees) with two sureties for the like sum, subject to the following stringent conditions:

1. The petitioner must give attendance before the concerned Investigating Officer (I.O.) once in 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 witnesses or abscond.
4. He shall co-operate with the I.O. for investigation.
5. He shall not commit a similar offence or any offence while on bail.
6. He must 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 entail the cancellation of bail.

The court’s ruling serves as a reminder of the graduated sentencing and bail structure under the NDPS Act, emphasizing that the severe constraints of Section 37 apply specifically to cases involving commercial quantities, while intermediate quantity cases are subject to a less restrictive bail assessment.