In a significant judicial order passed on August 12, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., rejected the bail petition filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 7543/2022. The court refused to grant regular bail to Vicky M (Accused No. 1 / Accused No. 2 as described in proceedings) in connection with Crime No. 65/2022 registered by the Madiwala Police Station for offences punishable under Sections 20(B) and 27(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 submitted by the Police Sub-Inspector (PSI) of Madiwala Police Station. According to the prosecution case, on April 23, 2022, at approximately 6:10 PM, while the complainant PSI was on patrolling duty near 27th Main Road, BTM 1st Stage, Jai Bheemanagar, Bengaluru, he spotted three unknown individuals holding a white bag on a two-wheeler motorcycle and attempting to sell items to the public.

Upon observing the police personnel arriving in a government jeep, all three individuals attempted to flee from the spot, abandoning the bag and two-wheeler. The police team surrounded and apprehended two individuals, while one suspect managed to escape from the scene. Upon enquiry, the apprehended persons disclosed their identities, with the petitioner identified as Vicky M, aged 24 years, son of Marappa, residing at No. 132, 1st Main, E Cross, 1st Block, Koramangala, Bengaluru.

A search of the white bag conducted at the spot resulted in the discovery and recovery of 21 kilograms and 650 grams of ganja. The police seized the contraband under a detailed spot mahazar, arrested the two apprehended accused, and submitted a report to the Station House Officer (SHO). Based on this report, Crime No. 65/2022 was registered under Sections 20(B) and 27(b) of the NDPS Act. The petitioner was produced before the jurisdictional Magistrate and remanded to judicial custody.

Arguments Submitted by Defence Counsel

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

• Claim of Innocence and False Implication: It was submitted that the petitioner is an innocent, law-abiding citizen and was falsely planted in the case by the respondent police with no connection to the alleged crime.
• Procedural Non-Compliance: The defence contended that mandatory procedural safeguards prescribed under the NDPS Act were not followed during the search, recovery, and seizure operations.
• Section 37 Argument: Defence counsel argued that statutory restrictions under Section 37 of the NDPS Act were not attracted for granting bail in this matter.
• Surety and Local Roots: It was urged that the petitioner is a permanent resident at the Koramangala address stated in the cause title, promised to abide by all court conditions, and was ready to furnish solvent sureties for his due appearance.

Prosecution Objections

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

• Commercial Quantity Seizure: Investigating authorities seized 21 kilograms and 650 grams of ganja directly from the conscious possession of the accused under a spot panchanama. Under statutory specifications, 20 kilograms constitutes a commercial quantity, thereby attracting the strict statutory bar under Section 37 of the NDPS Act.
• Severity of Sentence: The alleged offence involves commercial quantity drug peddling punishable under Section 20(c) of the NDPS Act with rigorous imprisonment for a term which shall not be less than 10 years and may extend up to 20 years, along with a fine.
• Risk of Recidivism and Flight: The prosecution contended that the petitioner is a habitual drug dealer who, if released on bail, would abscond, tamper with prosecution evidence, and continue selling illicit narcotic drugs.

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

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.

Since the total quantity seized from the two-wheeler was 21 kg 650 grams of ganja, the court conclusively established that it exceeded the 20 kg threshold and constituted a commercial quantity, bringing the bail application directly under the rigorous limitations of Section 37(1)(b) of the NDPS Act.

2. Statutory Bar Under Section 37 NDPS Act and Precedents

The court emphasized that for offences involving commercial quantities, Section 37 imposes mandatory twin conditions: bail cannot be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.

To reinforce this legal standard, Special Judge Smt. B.S. Jayashree referred to several authoritative Supreme Court precedents:

• Union of India v. Mohammed Nawaz Khan (Crl. Appeal No. 1043/2021, dated Sept 22, 2021): The Apex Court highlighted that stringent parameters are prescribed under the NDPS Act to curb drug trafficking. The Supreme Court set aside a High Court bail order, observing that findings on lack of direct physical recovery or procedural arguments under Section 42 do not absolve courts from rigorous scrutiny under Section 37(1)(b)(ii).
• State of Kerala v. Rajesh [(2020) 12 SCC 122]: The Supreme Court held that “reasonable grounds” means something more than prima facie grounds and requires substantial probable cause for believing the accused is not guilty. The Apex Court cautioned that liberal approaches in granting bail under the NDPS Act are completely uncalled for.
• State of M.P. v. Kajad [(2001) 7 SCC 673]: The Supreme Court affirmed that under Section 37(1)(b)(ii), negation of bail is the rule and its grant an exception.
• Babua v. State of Orissa [(2001) 2 SCC 566]: The Apex Court ruled that individual liberty must be balanced against societal interest. Given the lethal impact of drug trafficking on society, keeping accused persons behind bars during trial is justified when prima facie material exists.

3. Application of Law to Present Facts

Applying these dictums, the court noted that 21 kg 650 grams of ganja was seized directly at the spot where the petitioner was apprehended, establishing conscious possession. The defence failed to place any material on record to show that the accused was in no way connected with the contraband seized from the two-wheeler vehicle.

Finding strong prima facie material establishing the petitioner’s involvement in a commercial quantity drug offence, the court held that the mandatory conditions under Section 37 were not satisfied. It remains a settled principle of law 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

Answering Point No. 1 in the negative, Special Judge Smt. B.S. Jayashree formally rejected the bail petition on August 12, 2022:

The petition filed by the petitioner, Vicky M, under Section 439 of Cr.P.C. is hereby rejected.