Bengaluru, January 12, 2023 – In a significant ruling, the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) in Bengaluru granted bail to Baba Faqruddin, the accused (A2 in the police report, A1 in the bail petition) in a case involving the seizure of $1.1$ kilograms of Ganja and the alleged assault on police officials. The order, delivered by Smt. B.S. Jayashree, allowed the petition filed by the accused under Section 439 of the Criminal Procedure Code (Cr.P.C.) in connection with Cr. No. 170/2022 of Hebbal Police Station.
The case was registered for offences punishable under Sections 353 (Assault or criminal force to deter a public servant from discharge of his duty) and 323 (Voluntarily causing hurt) read with 34 of the Indian Penal Code (IPC), and Section 20(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
Background of the Case
The incident traces back to September 16, 2022. According to the police report submitted by the Sub-Inspector (PSI) of Hebbal Police Station, the complainant, along with other staff, was inspecting vehicles near 2nd Cross, Honey Bakery, Babureddy Layout, at approximately 4:15 PM. Two individuals, including the petitioner Baba Faqruddin, were moving on a Pulsar motorcycle. When instructed to stop, the police alleged that the individuals shouted at the staff. Accused No. 1 (A1) allegedly instructed Accused No. 2 (A2), the present petitioner, to assault the complainant and his staff. The petitioner, identified as A2 in the FIR, is alleged to have assaulted the complainant with firewood. When an associate came to the rescue of the complainant, they were also allegedly assaulted by A2.
One person, identified as Baba Faqruddin (Accused No. 1 in the FIR, the present petitioner), was apprehended at the spot, while the other, named Moula (Accused No. 2 in the FIR), fled, leaving the motorcycle behind. The petitioner, Baba Faqruddin, later revealed during interrogation that he was selling Ganja to the public and had stored the contraband in the bike’s dicky. A subsequent inspection of the motorcycle, conducted in the presence of two panchas (witnesses), led to the seizure of $1$ kilogram and $100$ grams of Ganja. The detailed mahazar (seizure memo) was drawn up at the scene. The second accused, Moula, who is the present petitioner Baba Faqruddin, was arrested two days later on September 18, 2022, produced before the court, and remanded to judicial custody (JC).
Petitioner’s Arguments for Bail
Appearing through his counsel, the petitioner maintained his innocence, claiming he was falsely implicated in the case and had no knowledge of the alleged crime. He argued that the mandatory provisions of the NDPS Act had not been complied with. The counsel emphasized that the seized quantity of Ganja was not a “commercial quantity.” Furthermore, the alleged offence is not punishable with imprisonment for life or the death sentence. The petitioner also highlighted that he is the sole breadwinner for his family, has no prior bad antecedents, is a permanent resident of the address provided, and is ready to abide by any conditions imposed by the court, including offering sufficient surety for his appearance.
Prosecution’s Objections
The prosecution vehemently opposed the bail plea, emphasizing the seriousness of the charges. The Public Prosecutor argued that the investigating agency had seized an “intermediate quantity” of $1$ kilogram and $100$ grams of Ganja. The court was informed that the petitioner had not only dealt in drugs but also assaulted a police official on duty. The offence is punishable with rigorous imprisonment for a term that can extend up to $10$ years. The prosecution maintained there was a prima facie case against the accused, characterizing him as a “habitual drug dealer” and expressing apprehension that if released on bail, he might abscond and tamper with the investigation.
Court’s Rationale and Key Finding
After hearing arguments from both sides and scrutinizing the available records, the court framed two points for consideration, with the primary one being whether the petitioner had made out sufficient grounds for bail.
The court’s decision hinged on the classification of the seized Ganja quantity. The judge meticulously referred to the Ministry of Finance Department of Revenue Notification S.O. $1055$(E) dated October 9, 2001, which specifies the small and commercial quantities of narcotic drugs. According to this notification, the small quantity for Ganja is $1000$ grams ($1$ kg) and the commercial quantity is $20$ kilograms.
The court observed that the seized quantum of Ganja, $1$ kilogram and $100$ grams, falls precisely in the “intermediate quantity” category—being more than the small quantity ($1$ kg) but less than the commercial quantity ($20$ kgs).
Crucially, the court relied on the judgment of the Hon’ble Apex Court in Birbal Prasad vs. State of Bihar ($2018$ $11$ SCC $488$), where it was held that for a non-commercial quantity, the rigors of Section 37 of the NDPS Act—which imposes stringent conditions for bail—do not apply.
“Here in this case the drugs seized by the investigating agency to the tune of $1$ Kg., $100$ grams of ganja which is an intermediate quantity. When the quantity is less than commercial quantity, rigors of Sec.37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statues normal, unless the prosecution points towards exceptional circumstances,” the judge noted in the order.
The court also considered that the major portion of the investigation was concluded, as the incriminating article had been seized, and further custodial interrogation was not warranted. The judge also observed that the investigating agency had not produced the medical report of the injured persons to ascertain the nature of injuries. Addressing the prosecution’s apprehension of absconding, the court determined that this could be adequately compensated by imposing stringent bail conditions.
Bail Conditions Imposed
In the result, the court allowed the petition and ordered the enlargement of the petitioner, Baba Faqruddin, on bail subject to the execution of a personal bond for a sum of $\text{Rs. } 1,00,000/$ (One Lakh Rupees) with Two sureties for the like sum, subject to the following eight conditions:
- The petitioner must appear 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.
- The petitioner shall not leave the jurisdiction of the court without prior permission.
- The petitioner shall not tamper with the witnesses or abscond.
- The petitioner shall cooperate with the I.O. for the investigation.
- The petitioner shall not commit a similar offence or any offence while on bail.
- The petitioner must furnish his photo ID proof and local address proof document before the court, along with the photo ID proof of his sureties.
- The petitioner shall appear before the court on all hearing dates.
- Breach of any of the conditions would entail the cancellation of bail.