Accused from Tamil Nadu Released on Conditional Bail Citing Non-Applicability of NDPS Section 37 Rigors for Intermediate Quantity
Bengaluru, December 3, 2022 — The Court of the XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru (CCH.33), today granted bail to two individuals, Arapalleshwaran @ Ramesh P. @ Arapalieswaran perumal (Accused No. 1) and Muniswamy N. @ Muni @ Munusamy Nagarajan (Accused No. 2), who were arrested in connection with a major ganja seizure. The order was passed in Crl.Misc. No. 11369/2022, filed under Section 439 of the Cr.P.C., seeking regular bail in Cr.No. 123/2022 registered by the S.J. Park Police Station for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
The petitioners, both residents of districts in Tamil Nadu, were apprehended on November 14, 2022, after a raid conducted by the Police Sub-Inspector (PSI) following a credible tip-off regarding the sale of contraband near Kuridoddi. The investigation agency reported seizing a total of 12 kilograms and 260 grams of ganja from the possession of the two accused.
Prosecution and Defence Contentions
The petitioners, represented by their counsel, argued that they were innocent and falsely implicated in the case. Key points of their defence included claims of non-compliance with the mandatory provisions of the NDPS Act, specifically Sections 50, 41, 42, 52, and 47, which deal with the procedure for search, seizure, and personal search of the accused. They contended that the seized quantity was not a commercial quantity, and since the offence is not punishable with imprisonment for life or death, they should be enlarged on bail. Furthermore, they asserted they were the sole bread earners of their respective families and were ready to abide by any conditions imposed by the court.
The prosecution, represented by the Public Prosecutor, vehemently opposed the bail plea. They highlighted the 12 Kgs 260 grams of ganja seized, emphasizing that a detailed mahazar was drawn, and a personal search was conducted. The prosecution argued that the offence carries a punishment of rigorous imprisonment up to 10 years and that there was a prima facie case against the petitioners, whom they suggested were habitual drug dealers. The fear expressed was that granting bail would lead to the accused absconding and potentially hampering the investigation.
Court’s Analysis of Ganja Quantity and Legal Precedent
The Special Judge, Smt. B.S. Jayashree, carefully analyzed the rival contentions, paying particular attention to the quantum of the seized narcotic substance. The court referred to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001, which specifies the quantity classifications under the NDPS Act.
- Small Quantity for Ganja is defined as 1000 grams (1 kg).
- Commercial Quantity for Ganja is defined as 20 Kgs.
The court conclusively determined that the seized quantity of 12 Kgs 260 grams of ganja falls in the category of Intermediate Quantity, as it is more than the small quantity but less than the commercial quantity threshold of 20 Kgs.
This classification proved pivotal in the court’s decision. The order explicitly noted that when the quantity is less than the commercial quantity, the rigors of Section 37 of the NDPS Act will not attract. Section 37 is the stringent provision that bars bail unless the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is unlikely to commit any offence while on bail. The court noted that when Section 37 does not apply, the factors for granting bail become similar to those under regular statutes.
To support its conclusion, the court relied on the precedent set by the Hon’ble Apex Court in the case of Birbal Prasad Vs. State of Bihar (reported in 2018 11 SCC 488), where the Supreme Court granted bail for the seizure of 14 Kgs of ganja, classifying it as a non-commercial quantity.
Bail Granted on Stringent Conditions
Considering that the major portion of the investigation was concluded with the seizure of the contraband, and further custodial interrogation was deemed unnecessary, the court held that the apprehension of the prosecution regarding the accused absconding could be compensated by imposing stringent conditions.
The court, therefore, allowed the petition, enlarging the petitioners on bail upon executing a personal bond for a sum of Rs. 1,00,000/- each with two sureties for the like sum.
The following strict conditions were imposed on the petitioners:
- Monthly Attendance: The petitioners shall give attendance 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.
- Jurisdictional Restriction: They shall not leave the jurisdiction of the court without prior permission.
- No Tampering: They shall not tamper with witnesses or abscond.
- Cooperation with I.O.: They shall cooperate with the I.O. for the investigation.
- No Similar Offence: They shall not commit a similar offence or any other offence while on bail.
- Proof Submission: They shall furnish their photo ID proof and local address proof documents before the court, along with the photo ID proof of their sureties.
- Court Appearance: They shall appear before the court on all hearing dates.
The court made it clear that a breach of any of these conditions would immediately entail the cancellation of bail. The order offers conditional liberty to the accused while ensuring their availability for the subsequent trial proceedings in the narcotics case.