In a significant legal development, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases in Bengaluru has granted bail to Mahesh, also known as Mahesh Kumar Yadav, in connection with a narcotics case. The decision, delivered by Smt. B.S. Jayashree on November 29, 2022, emphasizes the judicial distinction between “intermediate” and “commercial” quantities of contraband under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Case Background and Allegations
The case, registered as Crime No. 172/2022 by the Viveknagar Police, originated from a raid conducted on October 23, 2022. According to the prosecution, the Police Inspector of Viveknagar received credible information regarding the illegal sale of narcotics in a vacant space near Zeecarf Apartment in the ST Bed layout of Koramangala.
Upon arriving at the spot and mounting surveillance, the raiding team apprehended a person with a two-wheeler and a trolley bag. The individual was identified as Rakesh Kumar Singh. A subsequent search of the bag revealed the presence of 5 kilograms and 520 grams of ganja. Mahesh Kumar Yadav, the petitioner in this instance, was subsequently arrayed as Accused No. 2 and placed in judicial custody.
Arguments for the Petitioner
The legal counsel for Mahesh Kumar Yadav argued that the petitioner is a law-abiding citizen who has been falsely implicated by extraneous elements. The defense highlighted several key points:
- No contraband was directly seized from the physical possession of Mahesh.
- The mandatory procedural requirements under Section 50 of the NDPS Act, which governs personal searches, were not strictly followed.
- There were no independent eye witnesses to corroborate the alleged sale of contraband to the public.
- The quantity of ganja seized was not a “commercial quantity,” thereby making the stringent restrictions of Section 37 of the NDPS Act inapplicable.
Furthermore, the defense pleaded that Mahesh is the sole breadwinner for his family and had no prior criminal record or “bad antecedents.”
Prosecution Opposes Release
The Public Prosecutor strongly opposed the bail petition, asserting that 5.520 kilograms of ganja is a significant amount and that Mahesh was part of a drug dealing operation. The prosecution argued that the mahazar (seizure report) was conducted properly and that a prima facie case existed. They expressed concerns that if released, the accused might abscond or hamper the ongoing investigation, labeling him as a habitual offender in the narcotics trade.
The Courts Reasoning on Intermediate Quantity
The court’s decision hinged on the classification of the seized drug. Under the Ministry of Finance Notification S.O.1055(E), for Ganja:
- Small Quantity: 1,000 grams (1 Kg) or less.
- Commercial Quantity: 20 Kilograms or more.
The seized amount of 5.520 kilograms falls squarely into the “intermediate quantity” category. Judge B.S. Jayashree cited the Supreme Court precedent of Birbal Prasad vs. State of Bihar (2018), noting that when a quantity is non-commercial, the rigors of Section 37 do not apply. This allows the court to apply regular bail standards rather than the nearly impossible thresholds required for major traffickers.
The judge observed that the major portion of the investigation was concluded since the incriminatory articles had already been seized. Since the offence is not punishable by death or life imprisonment and the petitioner has a permanent residence, the court found no reason to keep him in continued custodial interrogation.
Terms of the Bail Order
The court allowed the petition under Section 439 of the Cr.P.C. Mahesh Kumar Yadav was ordered to be released on bail upon executing a personal bond for Rs. 1,00,000 with two sureties of the same amount. The bail is subject to the following strict conditions:
- The petitioner must mark his attendance before the Investigating Officer once a month (on the first Monday) until the charge sheet is filed.
- He must not leave the jurisdiction of the court without prior permission.
- He is strictly prohibited from tampering with witnesses or committing similar offences while on bail.
- He must cooperate fully with the Investigating Officer and appear on all hearing dates.
- He must provide valid photo ID and residential proof for himself and his sureties.
The court warned that any breach of these conditions would lead to the immediate cancellation of his bail.