In a significant judicial order delivered on November 23, 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. 11117/2022. The court enlarged Vyshali Das (Accused No. 4) on regular bail in connection with Crime No. 253/2022 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, and Section 14 of the Foreigners Act, 1946.

Prosecution Allegations and Procedural History

The criminal law was set into motion following a report submitted by an Assistant Sub-Inspector (ASI) of Amruthahalli Police Station. According to the prosecution case, on October 20, 2022, at approximately 4:30 PM, the ASI received credible intelligence forwarded by the Assistant Commissioner of Police (ACP), Sampigehalli, indicating that two individuals were selling cocaine and ecstasy pills to the public on the Lumbini Garden Service Road in Bengaluru.

Accompanied by police staff and independent panchas, the ASI conducted a raid and intercepted Accused Nos. 1 and 2. A search of the bags carried by Accused Nos. 1 and 2 yielded 3 grams of cocaine and 15 ecstasy pills. The police seized the contraband under a detailed spot mahazar and registered Crime No. 253/2022 under Section 22(B) of the NDPS Act and Section 14 of the Foreigners Act. Accused Nos. 1 and 2 were arrested and remanded to judicial custody.

During subsequent investigation, Accused Nos. 1 and 2 provided voluntary statements naming the present petitioner, Vyshali Das (aged 29 years, daughter of Gopal Das, residing at Juariya Park, Mumbai, and currently staying in Bengaluru), who was subsequently arrayed as Accused No. 4. The prosecution alleged that Vyshali Das assisted Accused Nos. 1 to 3 in drug peddling, became acquainted with Accused No. 1 via Instagram, and allowed her Indian Overseas Bank account and mobile payment applications to be used for financial transactions related to illicit drug sales, receiving a share of the profits. She was arrested on October 27, 2022.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri Gopal presented several grounds seeking her enlargement on regular bail:

• False Implication and Lack of Recovery: It was submitted that the petitioner was innocent, had no involvement in the alleged crime, and that no contraband or incriminating articles were recovered from her direct physical possession.
• Statements Under Coercion: Defence counsel contended that voluntary statements were drawn up by the police at their whims and fancies to suit the prosecution case after the initial raid.
• Procedural Non-Compliance: The defence argued that mandatory statutory safeguards under Sections 41, 42(2), 50, 52, and 57 of the NDPS Act were not complied with during the investigation.
• Non-Commercial Threshold and Local Roots: It was urged that the petitioner has no previous criminal antecedents, is not a habitual offender, and has been in judicial custody since October 27, 2022. Being ready to offer solvent sureties, she undertook to abide by all court conditions.

Prosecution Objections

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

• Financial Facilitation of Drug Network: Investigating authorities asserted that the petitioner actively facilitated drug peddling by permitting her bank account and digital payment apps to be used for drug sales transactions.
• Seizure of Psychotropic Substances: The underlying raid resulted in the seizure of 3 grams of cocaine and 15 ecstasy pills from co-accused persons.
• Apprehension of Flight and Interference: 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 notifications, and rival contentions to decide Point No. 1: whether the petitioner made out sufficient grounds for regular bail.

1. Classification of Seized Contraband Quantities

The court examined the Ministry of Finance (Department of Revenue) Notification S.O. 1055(E) dated October 19, 2001:

• Cocaine (Entry Sl. No. 27): Small quantity is up to 2 grams; commercial quantity is 100 grams or more. The 3 grams seized from Accused Nos. 1 and 2 constitutes an intermediate quantity.
• MDMA / Ecstasy (Entry Sl. No. 134): Small quantity is up to 0.5 grams; commercial quantity is 10 grams or more.

The court specifically noted a significant evidentiary defect: while the prosecution papers listed 15 ecstasy pills, the Investigating Officer (IO) failed to specify or report the total weight of the pills despite specific directives from the court. In the absence of documented weight, the IO failed to establish that the 15 ecstasy pills met or exceeded the commercial quantity threshold.

2. Absence of Direct Recovery and Non-Applicability of Section 37

Special Judge Smt. B.S. Jayashree highlighted that no contraband was recovered from the physical possession of Vyshali Das, and her inclusion as Accused No. 4 rested solely on voluntary statements and bank transaction records.

Because the seized contraband was treated as non-commercial (intermediate quantity), the strict statutory restrictions on bail under Section 37 of the NDPS Act were not attracted. The criteria for evaluating the bail application reverted to standard principles under the Cr.P.C.

To support this position, the court cited the Supreme Court precedent in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488], where the Apex Court granted bail in a non-commercial contraband case where the accused had no prior criminal antecedents. Holding that the legal principles 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 observed that the petitioner had been in judicial custody since October 27, 2022, had no prior criminal antecedents, and was not a habitual offender. A major portion of the investigation had concluded following the seizure of the incriminatory articles from co-accused. The alleged offences are not punishable with death or life imprisonment, rendering further custodial interrogation unnecessary.

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 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, Vyshali Das, is enlarged on bail in Crime No. 253/2022 of Amruthahalli Police Station 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. She shall not leave the jurisdiction of this court without prior permission.
3. She shall not tamper with the witness or abscond.
4. She shall co-operate with the Investigating Officer for investigation.
5. She shall not commit a similar offence or any offence while on bail.
6. She shall furnish her photo ID proof and local address proof document before the court along with photo ID proof of her sureties.
7. She shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioner would entail cancellation of bail.