In a significant decision concerning the balancing of judicial freedom and public safety, the XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, has granted regular bail to two young men arrested in connection with a case involving drug possession, dacoity planning, and illegal arms.

The order, pronounced on September 6, 2022, by Smt. B.S. Jayashree, allowed the petition filed by the accused, Abhishek M (19) and David Raj R (18), under Section 439 of the Code of Criminal Procedure (Cr.P.C.). They were arrested by the HAL Police Station and charged in Crime No. 217/2022.

Background of the Arrest and Charges

The case against the petitioners stemmed from a police operation conducted on August 15, 2022. The complaint was filed by a Sub-Inspector (PSI) of the HAL Police Station, who received credible information regarding the assembly of armed persons near Vibuthipura lake, plotting to commit dacoity (gang robbery).

Key Allegations by the Police:

• On the evening of August 15, 2022, the PSI and his team went to the specified spot.
• They observed six to seven persons assembled with deadly weapons, including ‘longs’ (likely long knives/machetes), observing passersby suspiciously, and appearing to plan a robbery.
• The police apprehended the individuals and seized the weapons under a mahazar (a memorandum of seizure).
• Upon further search, the accused were allegedly found to be in possession of 500 grams of Ganja (cannabis).
• Following the arrest and seizure, the case was registered under multiple serious sections:
  • Section 20(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act: Relating to the possession of cannabis.
  • Sections 399 and 402 of the Indian Penal Code (IPC): Relating to assembling for the purpose of committing dacoity and preparing to commit dacoity.
  • Section 25 of the Arms Act: Relating to the possession of prohibited weapons.

Arguments for and Against Bail

The Petitioners’ Plea:

The defense counsel for Abhishek M and David Raj R argued that the petitioners were innocent, law-abiding citizens who had been falsely implicated. They specifically asserted that they had no intention to commit dacoity, nor were they carrying any weapons or narcotic drugs.

Crucially, they raised two technical arguments:

1. The procedure contemplated under the NDPS Act for recovery (search and seizure protocols) was allegedly not followed.
2. The stringent restriction on granting bail under Section 37 of the NDPS Act was not applicable in this case.

They assured the court of their permanent residence in Bengaluru and pledged to comply with any conditions imposed for their release.

The Prosecution’s Objection:

The Public Prosecutor strongly opposed the bail application, asserting that the accused had gathered with deadly weapons and chili powder with a clear intention to attack passerby and commit robbery. Furthermore, their conscious possession of 500 grams of Ganja was highlighted. The prosecution expressed a strong apprehension that if released, the petitioners would continue to commit similar offenses, abscond, and tamper with the evidence.

The Court’s Reasoning and Decision on the NDPS Act

In its careful evaluation, the Court primarily focused on the quantitative aspect of the drug seized and the applicability of Section 37 of the NDPS Act, which places severe limitations on bail for serious drug trafficking offences.

Analysis of Ganja Quantity:

The Court noted that the quantity of Ganja seized was 500 grams. Referring to the Ministry of Finance Department of Revenue Notification S.O. 1055(E) dated 19.10.2001, the Court highlighted the defined quantities:

• Small Quantity for Ganja is 1,000 grams (1 kg).
• Commercial Quantity for Ganja is 20,000 grams (20 kgs).

Since the seized quantity of 500 grams is less than the defined Small Quantity (1000 grams), the Court correctly classified the possession as relating to a Small Quantity (or non-commercial quantity, though the court used the term intermediate quantity in passing, the classification of 500 grams falls under the small quantity definition for this context). The Court cited the Hon’ble Apex Court judgment in the case of Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), which supported granting bail when the quantity involved is non-commercial.

Consequence for Bail:

Because the seized quantity did not meet the threshold for commercial quantity, the rigorous restrictions mandated by Section 37 of the NDPS Act are not applicable. The petitioners, therefore, did not have the high burden of proving that they were not guilty and that they would not commit another offence, which is otherwise required in commercial quantity cases.

Other Factors:

1. Custody Status: The investigation agency had already seized the incriminatory articles and had not sought police custody, suggesting that the initial phase of the investigation was complete.
2. Parity: The Court noted that Accused No. 5 in the same crime had already been granted bail by a lower court on August 26, 2022, and the allegations against the current petitioners were similar in nature.
3. IPC and Arms Act Charges: The Court observed that the offences under Sections 399, 402 IPC, and Section 25 of the Arms Act are not punishable with death or imprisonment for life, and the offence under Section 20(b) (small quantity) of the NDPS Act is punishable only up to one year imprisonment or fine, or both.

The Final Order and Conditions

Satisfied that the prosecution’s apprehension could be addressed through stringent conditions, the Court allowed the bail petition.

Bail Terms:

The petitioners were ordered to be released on bail upon executing a personal bond for Rs. 50,000/- (Rupees Fifty Thousand) each, with one surety for the like sum.

Mandatory Conditions Imposed:

1. The petitioners shall 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.
2. They shall not leave the jurisdiction of the Court without prior permission.
3. They shall not tamper with the witnesses or abscond.
4. They shall cooperate with the I.O. for the investigation.
5. They shall not commit a similar or any other offense while on bail.
6. They shall furnish their photo ID proof and the photo ID proof of their sureties.
7. A breach of any of these conditions would automatically lead to the cancellation of their bail.

This decision underscores the principle that the rigors of the NDPS Act are applied strictly based on the quantity of the drug involved, allowing the general principles of bail to apply in cases involving small or non-commercial quantities.