In a notable judicial order passed on December 8, 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. 11638/2022. The court enlarged Venkat (Accused No. 5) on regular bail in connection with Crime No. 276/2022 registered by the Amruthahalli Police Station. The petitioner was facing prosecution for offences punishable under Section 22(B) 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 Police Inspector (PI) of Amruthahalli Police Station. According to the prosecution case, on November 22, 2022, at approximately 6:45 PM, the complainant PI received credible information while present at the police station that 4 to 5 persons in a two-wheeler and an autorickshaw were selling ganja to the public on Sindhi College Road within the limits of Amruthahalli Police Station.

After noting the information in the Station House Diary, informing the Assistant Commissioner of Police (ACP), and obtaining permission to conduct a raid, the complainant PI along with his team rushed to the spot. The police found six persons moving suspiciously, surrounded them, and intercepted five persons, while one suspect (Sharavana) escaped from the spot. Upon enquiry, the apprehended persons disclosed their names as Rizwan (Accused No. 1), Chetan, Harish, Harbaaz, and Venkat (Accused No. 5).

Each of the apprehended persons was carrying a bag. A search revealed that each bag contained 100 grams of ganja. In addition, 2 grams of MDMA was found in the bag of Accused No. 1 (Rizwan). The police seized a total of 500 grams of ganja and 2 grams of MDMA under a spot seizure mahazar. Accused Nos. 1 to 5 were arrested, produced before the court, and remanded to judicial custody. Based on the report submitted to the Station House Officer (SHO), Crime No. 276/2022 was formally registered. The present petitioner, Venkat, aged 22 years, residing at Akshay PG, Chiranjeevi Layout, Kempapura, Hebbal, Bengaluru, arrayed as Accused No. 5, subsequently approached the court seeking regular bail.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri V.G.R. 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 planted in the case by the complainant police without having any knowledge of the alleged contraband.
• Small Quantity Classification: Defence counsel argued that individually, only 100 grams of ganja was seized from the petitioner, which constitutes a small quantity under statutory specifications.
• Procedural Non-Compliance: The defence contended that mandatory statutory provisions under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the raid, search, and recovery process.
• Custody and Absence of Antecedents: 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 earning member of his family. Being a permanent resident at the address stated in the cause title, he promised to abide by all 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 a total of 500 grams of ganja and 2 grams of MDMA from the possession of the accused under a detailed spot panchanama, with ganja recovered directly from the bag of Accused No. 5.
• Severity of Punishment: The prosecution submitted that the offences alleged carry rigorous imprisonment for a term extending 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 examined 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 and Statutory Offence

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

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

The court observed that while the collective seizure from all five accused was 500 grams of ganja and 2 grams of MDMA, the individual recovery from Venkat (Accused No. 5) was 100 grams of ganja. The court held that 100 grams of ganja falls strictly under the category of a small quantity. The offence attracted for small quantity under Section 20(b)(ii)(A) of the NDPS Act carries punishment extending up to one year of imprisonment, fine, or both.

2. Non-Applicability of Section 37 Rigors

The Special Judge emphasized that when the seized contraband is less than a commercial quantity, the stringent 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 regular statutory framework, unless exceptional adverse circumstances are demonstrated by the prosecution.

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 offence alleged against the petitioner is not punishable with death or imprisonment for life, rendering further custodial interrogation unnecessary. Furthermore, the court held that the prosecution’s apprehension 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, Venkat, is enlarged on bail in Crime No. 276/2022 of Amruthahalli Police Station on executing a personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety 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.