The XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases in Bengaluru has granted bail to a 22-year-old youth from Assam, Mohibul Hoque, who was arrested for allegedly peddling ganja from a mobile tempered glass kiosk. The order, delivered by Smt. B.S. Jayashree, emphasized that the quantity of the seized narcotic was an “intermediate quantity,” making the stringent bail restrictions under the NDPS Act inapplicable.
The petitioner, a resident of Garebhavipalya and a native of Barpeta, Assam, had been in judicial custody following a raid by the Parappana Agrahara Police.
Details of the Police Raid and Arrest
According to the prosecution, the case (Cr.No.410/2022) was initiated on November 22, 2022, following credible information received by the Police Inspector. The report suggested that an individual operating a mobile tempered glass kiosk on the footpath in front of Rami Stand Hotel on Hosur Road was selling contraband to the public.
Acting on this tip, the police conducted a raid and apprehended the suspect. Upon searching the kiosk, authorities allegedly seized 3 kilograms and 100 grams of ganja. Mohibul Hoque was subsequently arrested and produced before the court, where he was remanded to judicial custody.
Defense Claims vs. Prosecution Objections
The counsel for Mohibul Hoque argued that the petitioner was innocent and had been falsely implicated. The defense contended that:
- The petitioner is a law-abiding citizen and the sole breadwinner for his family.
- Mandatory procedural provisions under Section 50 of the NDPS Act were not followed during the search.
- No independent eyewitnesses were present to verify the alleged sale of contraband.
- The quantity seized was not a “commercial quantity,” thereby entitling the petitioner to bail under regular statutory factors.
The Public Prosecutor vehemently opposed the bail plea, arguing that Hoque was caught in possession of a narcotic substance and characterizing him as a habitual dealer. The prosecution expressed concerns that the accused might abscond or hamper the investigation if released.
Court Analysis: Intermediate vs. Commercial Quantity
A primary factor in the court’s decision was the classification of the seized drug. Under the Ministry of Finance Notification S.O.1055(E), the legal thresholds for ganja are clearly defined.
The court noted that for ganja, 1,000 grams (1 kg) constitutes a “small quantity,” while 20 kilograms constitutes a “commercial quantity.” Since the recovery was 3.1 kilograms, it falls into the Intermediate Quantity category.
Judge B.S. Jayashree cited the Supreme Court decision in Birbal Prasad Vs. State of Bihar, noting that when the quantity is less than commercial, the “rigors of Section 37 of the NDPS Act”—which make bail extremely difficult to obtain—do not apply. In such cases, the court treats the bail petition under regular standards unless exceptional circumstances are proven.
Conditions for Release
The court observed that the major portion of the investigation was concluded as the contraband had already been seized. Consequently, the court allowed the petition, ordering Hoque’s release on a personal bond of 1,00,000 Rupees with two sureties. To ensure his presence during the trial, the court imposed the following conditions:
- Monthly Attendance: The petitioner must report to the Investigating Officer once a month (on the first Monday) until the charge sheet is filed.
- Travel Restrictions: He is prohibited from leaving the jurisdiction of the court without prior permission.
- Conduct: He must not tamper with witnesses, abscond, or commit any similar offences while on bail.
- Cooperation: He must cooperate with the I.O. for further investigation and appear for all court hearing dates.
- Verification: He must furnish photo ID and local address proof for himself and his sureties.
The court warned that any breach of these conditions would lead to the immediate cancellation of bail.