Bengaluru, September 21, 2023 — The Court of the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) in Bengaluru, presided over by Smt. B.S. Jayashree, LL.M., granted bail to a young man, Alla Bakash alias Lucky, who was accused of offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The order, passed on September 21, 2023, pertains to Crl.Misc.No.8478/2023, filed under Section 439 of the Criminal Procedure Code (Cr.P.C.) seeking enlargement on bail in Cr.No.147/2023 of the Basaveshwaranagar Police Station.

The petitioner, 18-year-old Alla Bakash, son of Mehboob Pasha, a resident of Rajajinagar, Bengaluru, was booked for the offence punishable under Section 20(B) of the NDPS Act. This section deals with the possession of Ganja (cannabis) and carries a potential punishment of rigorous imprisonment for up to ten years.

Petitioner’s Arguments for Bail

Represented by Advocate Sri P Chiranjeevi, the petitioner argued his innocence, claiming he was falsely implicated by the respondent (State by Basaveshvaranagar PS). The defense emphasized that while the alleged offence is non-bailable, it does not mandate imprisonment for life or the death sentence, which are the primary triggers for the stringent conditions laid out in Section 37 of the NDPS Act. Crucially, the petitioner’s counsel contended that the mandatory procedures stipulated under the NDPS Act, such as Sections 41, 42, 50, 52, and 47, were not complied with during the recovery and seizure process. The petitioner asserted he is a permanent resident of the city and expressed his willingness to abide by any conditions imposed by the court, including offering solvent surety for his due appearance.

Prosecution’s Opposition and Seizure Details

The prosecution, represented by the Public Prosecutor, vehemently opposed the bail petition. The State highlighted that the Investigating Officer (I.O.) had seized a significant quantity of ganja, initially reported by the prosecution as 2 Kgs, 400 grams, but later confirmed in the court’s order to be 1 Kg, 358 grams under the seizure panchanama. The prosecution argued that the quantity seized prima facie makes a case against the accused, whose alleged offence is punishable with up to ten years of rigorous imprisonment.

Furthermore, the prosecution branded Alla Bakash as a “habitual drug dealer,” claiming numerous cases were pending against him in different courts under various provisions of the Indian Penal Code (IPC). The core apprehension was that if released on bail, the petitioner would continue his alleged “profession of narcotic drug selling,” abscond, and tamper with the prosecution’s evidence, thereby hampering the investigation.

The Court’s Detailed Analysis and Findings

The Court meticulously analyzed the rival contentions, prosecution records, and judicial precedents. The case was registered following a report on June 7, 2023, by a Head Constable (HC) of the Basaveshwaranagar PS, who received credible information about a person selling contraband at Shivanahalli playground. A raid was subsequently conducted, leading to the apprehension of the accused and the seizure of the contraband.

The primary point of consideration for the court was the applicability of the stringent bail conditions under Section 37 of the NDPS Act, which primarily restrict bail when the offence involves “commercial quantity” of a narcotic substance. The court found that the quantity of ganja seized, $1 \text{ Kg}, 358 \text{ grams}$, was critical to the decision.

Referring to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001, the Court noted that for ganja:

• Small Quantity is $1000 \text{ grams}$ (1 Kg).
• Commercial Quantity is $20 \text{ Kgs}$.

Since the quantity seized, $1 \text{ Kg}, 358 \text{ grams}$, falls between the small and commercial quantities, the court classified it as an intermediate quantity. The court ruled that when the quantity is less than the commercial quantity, the rigours of Section 37 of the NDPS Act do not attract, and factors for granting bail become similar to those under regular statutes, absent exceptional circumstances pointed out by the prosecution.

The Court relied on the Hon’ble Apex Court’s decision in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), which held that for non-commercial quantities, the accused should generally be released on bail pending trial. This precedent was found to be aptly applicable to the case at hand, as the seized contraband was an intermediate quantity, not a commercial one.

Addressing Criminal Antecedents

Regarding the prosecution’s argument about the petitioner’s criminal history, the Court acknowledged the submission by the defense that the petitioner had been acquitted in some of the prior cases after full-fledged trial and that other pending cases did not involve offences under the NDPS Act. The Court also cited the dictum of the Hon’ble High Court in Crl. Appeal No.152/2020 and Crl.Petition No. 3121/2020 (Y M Chetan and anr., Vs., State of Channarayapatna Town PS), which categorically held that the mere registration of a number of cases is not a sufficient ground to reject bail.

Conclusion and Bail Conditions

With the major portion of the investigation concluded through the seizure of the incriminatory article and the quantity being intermediate, the Court concluded that custodial interrogation was no longer warranted. The apprehension of the prosecution regarding absconding and tampering with evidence could be compensated by imposing stringent conditions.

Consequently, the Court allowed the petition. The petitioner, Alla Bakash alias Lucky, was enlarged on bail on executing a personal bond for a sum of $\text{Rs.1,00,000/-}$ with two sureties for the like sum.

The bail was granted subject to the following strict conditions:

1. The petitioner shall give attendance before the concerned 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 the investigation.
5. He shall not commit a similar offence or any other 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 entail the cancellation of bail.

The order was pronounced in Open Court on September 21, 2023. This ruling underscores the judicial distinction between intermediate and commercial quantities of narcotics in the context of bail applications under the NDPS Act.