In a notable judicial order passed on July 21, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., allowed the bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 7024/2022. The court enlarged Srinivas (Accused No. 3) on regular bail in connection with Crime No. 1/2022-23 registered by the Excise Police Station, Jayanagara Range. The petitioner was facing prosecution for offences punishable under Sections 8(c), 20(B)(ii)(A), and 25 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings commenced following a report submitted by the Excise Inspector of Excise Police Station, Jayanagara Range. According to the prosecution case, on July 6, 2022, at approximately 6:40 PM, the complainant Excise Inspector, acting on instructions from superior officers, proceeded near Bengaluru Hospital, South End Circle, Jayanagar, Bengaluru.

The excise team spotted an individual riding a TVS Ntorq two-wheeler carrying a bag. On suspicion, the officers intercepted and apprehended him. A personal search resulted in the discovery and recovery of 5 kilograms and 654 grams of ganja. The contraband was seized under a detailed spot seizure panchanama, and a report was prepared and submitted before the Excise Inspector, forming the basis to register Crime No. 1/2022-23. The petitioner, Srinivas, aged about 45 years, residing at No. 5, Mavalli Tank Bund Road, 2nd Cross, Kalasipalya, Bengaluru, arrayed as Accused No. 3 in the case, was formally arrested, produced before the jurisdictional Magistrate, and remanded to judicial custody.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri S.M.A. presented several grounds seeking his enlargement on regular bail:

• False Implication: It was submitted that the petitioner is innocent, a law-abiding citizen, and was falsely implanted in the case at the instance of extraneous elements without having any knowledge of the alleged contraband.
• Non-Commercial Quantity: Defence counsel argued that the seized contraband (5.654 kg of ganja) falls under the intermediate, non-commercial quantity threshold.
• Procedural Non-Compliance: The defence contended that mandatory provisions under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the search and recovery process.
• Custody and Local Roots: It was urged that there are no eyewitnesses testifying to the sale of the contraband, the petitioner has no bad antecedents, and he is the sole breadwinner for his family. Being a permanent resident at the address stated in the cause title, he promised to abide by court conditions and furnish adequate sureties for his due appearance.

Prosecution Objections

The Public Prosecutor strongly opposed the bail petition, raising the following objections:

• Recovery of Contraband: Investigating authorities seized 5 kg 654 grams of ganja directly from the possession of the accused under a detailed spot mahazar following a search.
• Severity of Punishment: The alleged offences carry rigorous imprisonment for a term that may extend up to 10 years along with a fine.
• Apprehension of Absconding: The prosecution argued that a prima facie case exists establishing that the petitioner is a habitual drug dealer who, if released on bail, would abscond and hamper the ongoing investigation.

Judicial Analysis and Detailed Legal Reasoning

The Special Court evaluated the prosecution papers, statutory provisions, and rival contentions to decide Point No. 1: whether the petitioner made out sufficient grounds for regular bail.

1. Classification of Ganja Quantity

The court referred to Notification S.O. 1055(E) dated October 19, 2001, issued by the Ministry of Finance (Department of Revenue). Under Entry Sl. No. 55:

• Small Quantity for Ganja: Up to 1,000 grams (1 kg).
• Commercial Quantity for Ganja: 20 kilograms or more.

The court observed that the 5 kg 654 grams of ganja recovered in this case exceeds 1 kg but remains far below 20 kg, placing it explicitly in the category of an intermediate quantity.

2. Non-Applicability of Section 37 Rigors and Precedent Analysis

The Special Judge emphasized that when the seized contraband is less than a commercial quantity, the strict statutory restrictions on bail under Section 37 of the NDPS Act do not apply. Consequently, the criteria for considering bail revert to standard principles under the regular Cr.P.C. framework, unless exceptional adverse circumstances are established by the prosecution.

To reinforce this legal principle, Special Judge Smt. B.S. Jayashree relied on the binding Supreme Court precedent in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488]. In that decision, the Apex Court granted bail to an accused found in possession of 14 kg of ganja (a non-commercial quantity) who had no prior criminal antecedents. Holding that the precedent applied directly to the present facts, the court ruled that the petitioner’s bail plea deserved favorable consideration.

3. Investigation Progress and Custodial Necessity

The court noted that a major portion of the investigation was already concluded since the incriminatory contraband had been seized and the voluntary statement of the accused recorded. The alleged offences are not punishable with death or imprisonment for life, rendering further custodial interrogation unnecessary. Furthermore, the court held that the prosecution’s apprehensions regarding flight risk or trial delay could be effectively compensated by imposing stringent bail conditions.

It remains a settled principle of criminal jurisprudence that an order granting or refusing bail at the pre-trial stage is purely a procedural determination and does not amount to a final determination of the accused person’s guilt or innocence, which remains subject to full-fledged trial.

Final Bail Order and Imposed Conditions

Answering Point No. 1 in the affirmative, Special Judge Smt. B.S. Jayashree allowed the petition filed under Section 439 Cr.P.C. and passed the following order:

The petition filed by the petitioner under Section 439 of Cr.P.C. is hereby allowed. The petitioner, Srinivas, is enlarged on bail in Crime No. 1/2022-23 of Excise Police Station, Jayanagara Range on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties for the like sum, subject to the following conditions:

1. The petitioner shall give attendance before the concerned Investigating Officer once a month, preferably on the first Monday of every month between 10.00 AM and 2.00 PM, till filing of charge sheet or further orders, whichever is earlier.
2. He shall not leave the jurisdiction of this court without prior permission.
3. He shall not tamper with the witness or abscond.
4. He shall co-operate with I.O for investigation.
5. He shall not commit similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and local address proof document before the court and photo ID proof of his sureties.
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioner would entail cancellation of bail.