In a significant judicial order delivered on September 27, 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. 8826/2022. The court enlarged Tapan Kumar Parida (Accused No. 3) and Shaik Mastan (Accused No. 4) on regular bail in connection with Crime No. 162/2022 registered by the Begur Police Station. The petitioners were facing prosecution for offences punishable under Section 20(B) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings were set into motion following a report by the Police Sub-Inspector (PSI) of Begur Police Station. According to the prosecution case, on June 16, 2022, at approximately 6:30 PM, the complainant PSI received credible information regarding the illegal sale of ganja by an unknown person in an empty plot on Basapura Main Road, Chikkabegur, Bengaluru. The PSI registered a suo-moto case in Crime No. 162/2022 under Section 20(B) of the NDPS Act against an unknown person and obtained permission from superior officers to conduct a raid.

Upon reaching the spot, the police team apprehended a suspect who disclosed his name as Accused No. 1. A personal search yielded 1 kilogram and 190 grams of ganja along with 20 plastic covers. During interrogation, Accused No. 1 revealed that he had purchased the contraband from one Akshay Bindani and Tapan Kumar Parida of Odisha.

Based on the disclosure statement of Accused No. 1, investigating officers apprehended Accused Nos. 2 and 3 (Tapan Kumar Parida) on June 21, 2022, at Subashnagar near the NICE Road bridge on Basapura Main Road, seizing 3 kilograms and 530 grams of ganja from their joint possession. During further interrogation, Accused Nos. 2 and 3 disclosed the involvement of Shaik Mastan (Accused No. 4). On June 26, 2022, police intercepted Accused No. 4 at the Kudlu Gate subway on Hosur Road and recovered 3 kilograms of ganja from his conscious possession.

Subsequent disclosures by Accused Nos. 2 and 3 led the police team to mount surveillance at Basava Circle on Begur-Koppa Road, Hulimavu, on June 30, 2022. There, the police intercepted a Suzuki Ciaz car bearing registration number KA 12 Z 6644 occupied by Accused Nos. 5 to 8, recovering a massive haul of 36 kilograms and 854 grams of ganja stored inside the vehicle. The total quantity of ganja seized across all arrests in Crime No. 162/2022 aggregated to 48 kilograms and 930 grams.

The cause title captures the background details of the two petitioners:

• Tapan Kumar Parida (Accused No. 3): Aged 27 years, son of Neelambar Parida, residing at No. 183, Nanjundappa Building, 1st Cross, near Nisarga School, Hegganahalli, Bengaluru.
• Shaik Mastan (Accused No. 4): Aged 47 years, son of Moulali S.K., residing at S.S.V.R. Construction Labour Shed, near H.P. Gas Godown, Hemmadahalli, Whitefield, Bengaluru; native of No. 1/10, Addanki Road, Darsi Mandalam, Prakasam District, Andhra Pradesh.

Arguments Submitted by Defence Counsel

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

• Individual Intermediate Quantity Seizure: Defence counsel vehemently argued that the specific contraband seized individually from Accused No. 3 (3.53 kg along with Accused No. 2) and Accused No. 4 (3 kg) constitutes intermediate non-commercial quantities under statutory notifications.
• Lack of Connection with Co-Accused: It was urged that the petitioners had no connection or nexus with Accused Nos. 5 to 8, from whom a commercial quantity was seized on a much later date in a separate vehicle search.
• Procedural Non-Compliance: The defence contended that mandatory statutory safeguards under the NDPS Act were not complied with during search and seizure, creating serious doubts regarding the investigation.
• Custody and Local Roots: Counsel submitted that the major portion of the investigation was complete, custodial interrogation was no longer warranted, and the petitioners, being permanent residents, were willing to abide by court conditions and offer reliable sureties.

Prosecution Objections

The Public Prosecutor strongly opposed the bail petition, advancing the following arguments:

• Aggregate Commercial Quantity: The prosecution highlighted that the total quantity of ganja seized in the entire case was 48 kilograms and 930 grams, which constitutes a commercial quantity attracting severe statutory penalties.
• Severity of Sentence: The alleged offences carry rigorous imprisonment extending up to 20 years along with a fine.
• Risk of Absconding and Re-Offending: The prosecution contended that a prima facie case exists establishing that the petitioners are habitual drug dealers who, if released on bail, would abscond, tamper with evidence, and re-engage in illicit drug peddling.

Judicial Analysis and Detailed Legal Reasoning

The Special Court examined the prosecution papers, case diary records, and rival contentions to decide Point No. 1: whether the petitioners made out sufficient grounds for regular bail.

1. Classification of Seized Contraband Quantities

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 noted that while the overall case haul was 48.93 kg, the specific recoveries from the petitioners were distinct:

• From Accused Nos. 2 and 3: 3 kg 530 grams of ganja.
• From Accused No. 4: 3 kg of ganja.

2. Disaggregation of Seizures Made on Different Dates

Special Judge Smt. B.S. Jayashree made a crucial judicial distinction regarding multi-accused NDPS investigations involving staggered arrests:

• The eight accused persons were arrested on different dates between June 17, 2022, and June 30, 2022, under separate search operations.
• Accused Nos. 3 and 4 were apprehended with 3.53 kg and 3 kg of ganja respectively, both falling strictly within intermediate quantity limits.
• The commercial quantity of 36.854 kg was recovered exclusively from Accused Nos. 5 to 8 inside a Ciaz car on June 30, 2022.
• The court observed that the investigating agency failed to place convincing material or evidence establishing a link or nexus between Accused Nos. 1 to 4 and Accused Nos. 5 to 8.
• Consequently, the court held that when evaluating the bail plea of individual accused arrested separately with non-commercial quantities, the court cannot mechanically pool the entire quantum seized across different dates from co-accused. Each accused’s plea must be evaluated based on the specific contraband recovered from their conscious possession.

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

Holding that the contraband recovered from the petitioners was of an intermediate quantity, the court held that the stringent statutory bar under Section 37 of the NDPS Act did not apply. Reverting to regular statutory bail principles under the Cr.P.C., the court relied on the Supreme Court judgment in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488], where bail was granted for possession of 14 kg of ganja (a non-commercial quantity).

4. Progress of Investigation

The court noted that the incriminatory contraband had already been seized, voluntary statements were recorded, and the alleged offences were not punishable with death or life imprisonment, making further custodial interrogation unnecessary. Prosecution fears regarding flight risk could be adequately addressed through stringent conditions.

It remains a well-settled principle of criminal jurisprudence that an order deciding a bail application at the pre-trial stage is purely a procedural relief and does not amount to a final determination of the accused persons’ 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 petitioners under Section 439 of Cr.P.C. is hereby allowed. The petitioners, Tapan Kumar Parida and Shaik Mastan, are enlarged on bail in Crime No. 162/2022 of Begur Police Station on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) each with two sureties for the like sum, subject to the following conditions:

1. The petitioners 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. They shall not leave the jurisdiction of this court without prior permission.
3. They shall not tamper with the witness or abscond.
4. They shall co-operate with the Investigating Officer for investigation.
5. They shall not commit a similar offence or any offence while on bail.
6. They shall furnish their photo ID proof and local address proof document before the court along with photo ID proof of their sureties.
7. They shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioners would entail cancellation of bail.