In a notable judgment concerning the legal classification of seized narcotics, a Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) in Bengaluru has granted bail to an accused, Ganesh @ Gani, who was arrested for the possession of 1 Kg and 100 grams of Ganja. The court held that the seized amount, although exceeding 1 kilogram, still falls within the definition of ‘intermediate quantity,’ thus mitigating the severe restrictions on bail imposed by the NDPS Act.

The order was passed on January 12, 2023, by the XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Smt. B.S. Jayashree, allowing the petition filed by Ganesh @ Gani, a 21-year-old resident of Nandini Layout, Bengaluru.

The Charges and Allegations

The petitioner sought regular bail under Section 439 of the Criminal Procedure Code (Cr.P.C.) in Cr. No. 489/2022, registered by the Kamakshipalya Police Station. The charges against him are under Sections 8(c) and 20(b) of the NDPS Act, relating to the prohibition and punishment for the possession and sale of cannabis.

According to the prosecution’s report, on December 16, 2022, the PSI of the Kamakshipalya PS received credible information that a person was attempting to sell Ganja in a vacant space near the Temple, Bajaj Ground, Sunkadakatte market. After obtaining permission from a higher officer, a raid was conducted. The suspect, later identified as Ganesh @ Gani, was apprehended with a bag. Upon weighing the contents, the seized Ganja was found to be 1 Kg and 100 grams (1.1 Kgs). A detailed mahazar was drawn, the contraband was seized, and the accused was arrested and subsequently remanded to judicial custody.

Arguments from Both Sides

The petitioner’s counsel argued that Ganesh @ Gani was innocent, falsely implicated, and had no knowledge of the seized drug. The defense emphasized that the mandatory procedural requirements of the NDPS Act, particularly Section 50 (regarding personal search), were not complied with. Arguing that the seized article was not a commercial quantity, the counsel stated that the petitioner, who claimed to be the sole bread earner for his family and had no bad antecedents, was ready to abide by any court conditions to secure his release.

The prosecution opposed the bail plea, asserting a prima facie case based on the seizure of 1 Kg and 100 grams of Ganja. The Public Prosecutor argued that the petitioner was a “habitual drug dealer” and that his release could lead to him absconding or hindering the investigation, as the offence carries a punishment of up to 10 years of rigorous imprisonment.

The Court’s Definitive Stance on Quantity Classification

The Special Judge determined the bail eligibility primarily by classifying the seized quantity of Ganja according to the NDPS Act’s statutory thresholds.

The court referred to the Ministry of Finance Department of Revenue Notification S.O. 1055(E) dated October 19, 2001 (Sl. No. 55) for Ganja (Cannabis):

• Small Quantity (SQ): 1000 grams (1 Kg).
• Commercial Quantity (CQ): 20 Kgs.

The seized quantity of 1 Kg and 100 grams (1100 grams) is just above the Small Quantity limit (1000 grams) but significantly below the Commercial Quantity limit (20,000 grams).

Based on this, the court concluded: “In this case the quantum of ganja seized is 1 Kg., 100 grams of ganja is an intermediate quantity.”

Applicability of Section 37 and Precedent

The classification as ‘intermediate quantity’ was the pivotal factor in the court’s decision. The court reiterated that when the quantity is less than the commercial quantity, the rigorous conditions imposed by Section 37 of the NDPS Act—which make bail extremely difficult to obtain—will not attract. The bail petition, therefore, had to be considered under the normal, less restrictive parameters of regular criminal statutes.

The court also cited the authoritative judgment of the Hon’ble Apex Court in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488). In that case, the Supreme Court granted bail for 14 Kgs of Ganja after classifying it as a non-commercial quantity, underscoring that the bail plea of the accused in the present case should be considered favourably based on the Supreme Court’s observations.

Bail Conditions

Finding that the major portion of the investigation was concluded, the contraband seized, and further custodial interrogation not warranted, the court allowed the petition. The court addressed the prosecution’s apprehension of absconding by imposing stringent conditions.

Ganesh @ Gani was enlarged on bail upon executing a personal bond for a sum of Rs. 1,00,000/- with two sureties for the like sum. The key conditions for his release include:

• The petitioner must report to the concerned Investigating Officer once a month, on the first Monday, between 10:00 am and 2:00 pm, until the charge sheet is filed.
• He shall not leave the court’s jurisdiction without prior permission.
• He shall not tamper with witnesses or abscond.
• He shall not commit any similar offence while on bail.
• He must appear before the court on all hearing dates.

The court made it explicit that any breach of these conditions would automatically lead to the cancellation of bail. This judgment provides clear judicial guidance on the treatment of quantities just over the small quantity threshold under the NDPS Act.