BENGALURU: Basudeb Mahakud, a 32-year-old resident of Odisha, was granted bail by the Special Judge for Narcotic Drugs and Psychotropic Substances (NDPS) at Bengaluru in a case involving the alleged seizure of $6$ kilograms and $500$ grams of Ganja. The order, passed by Smt. B.S. Jayashree, the XXXIII Addl. City Civil & Sessions Judge & Spl. Judge (NDPS), on March 20, 2024, allows Mahakud to be enlarged on bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.) in connection with Cr.No.210/2024 registered at Mahadevapura Police Station.
The court’s decision hinged on the fact that the quantity of Ganja seized, while significant, falls within the ‘intermediate quantity’ bracket, thereby exempting the accused from the stringent bail restrictions imposed by Section 37 of the NDPS Act.
Allegations and Prosecution Stance
The case against Basudeb Mahakud stems from an incident on March 8, 2024. According to the prosecution’s case, a Police Sub-Inspector (PSI) from Mahadevapura Police Station, while on patrolling duty, received information that a person was selling Ganja near the Iori College compound. Acting on this tip-off, which also suggested the person would return to the spot, the police registered a case against an unknown person under Section 20(b) of the NDPS Act.
Subsequently, the PSI obtained permission from a higher officer to conduct a raid. With panchas (independent witnesses) and staff, they proceeded to the spot, apprehended the suspect (later identified as Mahakud), and questioned him about the contents of a bag he possessed. Mahakud allegedly admitted to carrying Ganja. Upon weighing, the seized substance was determined to be $6$ Kgs and $500$ grams of Ganja. A detailed mahazar (seizure report) was drawn up, the accused was arrested, and later remanded to judicial custody.
The prosecution vehemently opposed the bail petition, arguing that the offence is serious, punishable with rigorous imprisonment for a term of not less than $10$ years and up to $20$ years, along with a fine. The Public Prosecutor contended that there was sufficient material available against the petitioner, and his release could lead to him tampering with prosecution witnesses or involving himself in similar offences, potentially “ruin[ing] the career of younger generation.” The prosecution also asserted that the investigation agency had complied with all the mandated provisions of the NDPS Act during the seizure.
Defence and Key Legal Arguments
The petitioner’s counsel, Sri NAT, argued that Mahakud was innocent, falsely implicated, and unaware of the seized drug. The defence focused on three main points: first, that the mandatory procedures for search and seizure under the NDPS Act were not complied with; second, that the seized quantity was not a ‘commercial quantity,’ which significantly influences the bail provisions; and third, that the petitioner is a permanent resident of Odisha, ensuring his appearance if conditions were imposed.
Judicial Analysis on Quantity and Section 37
The court’s analysis focused heavily on classifying the quantity of Ganja seized to determine the applicability of Section 37 of the NDPS Act. This section imposes severe restrictions on granting bail where the seized quantity is ‘commercial’ in nature.
The court referred to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001, which specifies the small and commercial quantities for narcotic drugs. According to this notification, for Ganja (Sl.No.55):
- Small Quantity: $1000$ grams ($1$ Kg)
- Commercial Quantity: $20$ Kgs
Since the quantity seized from Basudeb Mahakud was $6$ Kgs and $500$ grams, the court classified it as an ‘intermediate quantity’—falling between the small and commercial limits.
Crucially, the Special Judge cited the Hon’ble Apex Court’s decision in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488). In that case, where the quantity involved was $14$ Kgs of Ganja (also a non-commercial/intermediate quantity), the Supreme Court ruled that the accused should be released on bail pending trial.
Applying this binding precedent, the Bengaluru court held that since the quantity seized is an intermediate quantity and not a commercial quantity, the rigors of Section 37 of the NDPS Act will not attract. The bail factors, therefore, become similar to those considered in bail petitions under regular statutes, unless exceptional circumstances are pointed out by the prosecution—which the court found to be absent in this case.
Bail Conditions
Further noting that the major portion of the investigation is concluded, and that custodial interrogation is no longer warranted, the court allowed the petition. To mitigate the prosecution’s apprehension of the petitioner absconding or protracting the trial, stringent conditions were imposed.
Basudeb Mahakud has been granted bail upon executing a personal bond for a sum of ₹1,00,000/- (Rupees One Lakh only) with two sureties for the like sum.
The specific conditions include:
- Attendance: The petitioner must attend 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.
- Jurisdiction Restriction: He shall not leave the jurisdiction of the court without prior permission.
- No Tampering: He shall not tamper with witnesses or abscond.
- Cooperation: He must cooperate with the I.O. for the investigation.
- No Repeat Offence: He shall not commit similar or any other offence while on bail.
- Proof: He must furnish his photo ID proof, local address proof document, and the photo ID proof of his sureties to the court.
- Court Appearance: He shall appear before the court on all hearing dates.
The court warned that the breach of any of these conditions would automatically entail the cancellation of bail.