BENGALURU, JANUARY 17, 2023 – In a ruling with significant implications under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, has granted regular bail to G. Nagesh (Accused No. 2), who was arrested in connection with a major drug seizure. The court, presided over by SMT. B.S. JAYASHREE, determined that the quantity of Ganja and Hashish oil seized fell within the “intermediate quantity” range, thereby excluding the stringent conditions mandated by Section 37 of the NDPS Act.
The petitioner, G. Nagesh, aged 55, filed the petition under Section 439 of the Cr.P.C. seeking release in Crime No. 212/2022 of the Basavanagudi Police Station, registered for offenses under Sections 8(c) and 20(ii)(b) of the NDPS Act.
The Allegations and Seizure Details
The case was set in motion on December 30, 2022, when a Head Constable of the Basavanagudi Police, while on patrolling duty, received information about drug peddlers operating in the Gandhi Bazar area. The complainant mounted surveillance on Ranoji Rao Conservancy Lane where two persons were allegedly found showing and attempting to sell contraband to students and the public from a TATA Indica Car and a two-wheeler.
Upon inquiry and subsequent raid, the police allegedly recovered the contraband stored in the back seat of the Indica Car. The seizure inventory showed the following quantities:
- Ganja: 9 kgs 850 grams
- Hashish Oil: 970 grams
The accused were arrested, produced before the court, and remanded to judicial custody. G. Nagesh is identified as Accused No. 2 in the case.
Arguments Presented to the Court
The counsel for the petitioner, Sri. K.T.V., argued that G. Nagesh was falsely implicated and had no nexus with Accused No. 1. The key point of the defense was that the quantity seized was less than the commercial quantity, meaning the restrictive provisions of Section 37 of the NDPS Act should not apply. The defense also alleged non-compliance with mandatory procedural provisions (Sections 41, 42, 50, 52, and 47) and assured the court that the petitioner, a permanent resident, would abide by all conditions.
The prosecution, represented by the Public Prosecutor, vehemently opposed bail. They contended that the combined seizure of 9.85 Kgs of Ganja and 970 grams of Hashish oil constituted a commercial quantity. They argued that the offenses were serious, punishable with rigorous imprisonment of 10 to 20 years, and expressed fears that the petitioner would tamper with witnesses, abscond, or involve himself in similar offenses, particularly selling drugs to the younger generation.
Court’s Crucial Finding on Quantity
The Special Judge meticulously evaluated the seized quantities against the Ministry of Finance Notification S.O.1055(E) dated October 19, 2001, which defines small and commercial quantities:
- Ganja (Sl. No. 55):
- Small Quantity: 1,000 grams (1 Kg)
- Commercial Quantity: 20 Kgs
- Seized Quantity: 9 kgs 850 grams.
- Conclusion: The seized Ganja is more than the Small Quantity but less than the Commercial Quantity, placing it in the intermediate quantity range.
- Hashish (Sl. No. 23):
- Small Quantity: 100 grams
- Commercial Quantity: 1 Kg (1000 grams)
- Seized Quantity: 970 grams (of Hashish oil).
- Conclusion: The seized Hashish oil is more than the Small Quantity but less than the Commercial Quantity, placing it in the intermediate quantity range.
The court explicitly held, “The quantum of ganja seized is 9 kgs 850 grams of ganja, Hashish seized is 970 grams which is an intermediate quantity.”
Non-Attraction of Section 37 Rigors
The classification of the seized material as intermediate quantity proved to be the decisive factor in the ruling. The court cited the Hon’ble Apex Court judgment in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), where the Supreme Court granted bail when the quantity of Ganja (14 Kgs) was classified as non-commercial.
The Judge concluded: “When the quantity is less than commercial quantity, rigors of Sec.37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statues normal, unless the prosecution points towards exceptional circumstances.”
Finding that the major portion of the investigation was concluded with the seizure of the incriminatory articles, and that further custodial interrogation was not warranted, the court decided to grant bail while mitigating the prosecution’s fears of abscondence or tampering through stringent conditions.
Conditional Release Granted
The court allowed the bail petition and ordered the release of G. Nagesh on bail, subject to executing a personal bond for Rs. 1,00,000/- (One Lakh Rupees) with two sureties for the like sum.
The release is subject to the following conditions:
- Mandatory Monthly Attendance: The petitioner shall give attendance before the concerned Investigating Officer (I.O.) once a month, preferably on the first Monday of every month between 10:00 a.m. and 2:00 p.m., till the filing of the charge sheet or further orders, whichever is earlier.
- Jurisdiction Restriction: He shall not leave the jurisdiction of this court without prior permission.
- No Tampering/Absconding: He shall not tamper with the witnesses or abscond.
- Cooperation: He shall cooperate with the I.O. for investigation.
- No Similar Offences: He shall not commit similar offenses or any offense while on bail.
- Proof of Identity: He shall furnish his photo ID proof and local address proof document before the court, along with photo ID proof of his sureties.
- Court Attendance: He shall appear before the court on all hearing dates.
The court warned that any breach of these conditions would automatically lead to the cancellation of the bail.