Bengaluru, Karnataka: In a ruling delivered on December 5, 2022, the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, issued a split verdict on the bail application of two men arrested in an intermediate quantity drug seizure case. The court rejected the bail plea of Petitioner No. 2, Mohammed Shakir, due to his extensive criminal antecedents, while granting bail to Petitioner No. 1, Anas @ Prince, who had no prior record.

The two petitioners had filed a petition under Section 439 of the Cr.P.C. seeking regular bail in Cr. No. 356/2022, registered by the Yeshwanthpur Police Station for offences under Sections 20(b) (punishment for production, possession, etc., of cannabis), 22(b) (punishment for psychotropic substances), and 27(b) (punishment for consumption) of the NDPS Act, along with Section 25 of the Arms Act.

Details of the Arrest and Seizure

The case was registered following a raid conducted by the PSI of Yeshwanthpur Police Station on November 2, 2022, based on a credible tip-off about drug peddling near the Christ the King Church road. The police apprehended the two petitioners on a footpath.

The seizure made from the petitioners included:

• From Anas @ Prince (Petitioner No. 1): 1.5 grams of MDMA from his hand and 3.5 grams of MDMA from his pocket, totaling 5 grams of MDMA.
• From Mohammed Shakir (Petitioner No. 2): 80 grams of Ganja and 1 Kg, 20 grams of Ganja leaves from a college bag, totaling 1 Kg, 100 grams of Ganja.

The total seized quantity included 1 Kg, 100 grams of Ganja and 5 grams of MDMA.

Quantitative Analysis and Rigors of NDPS Act

The court’s order meticulously analyzed the seized quantities against the specified thresholds defined by the Ministry of Finance Notification S.O.1055(E) dated 19.10.2001:

1. Ganja (Cannabis): The small quantity is 1000 grams (1 Kg), and the commercial quantity is 20 Kgs. The seized amount of 1 Kg, 100 grams (1100 grams) was categorized as an intermediate quantity (falling between small and commercial quantity).
2. MDMA (Ecstasy/Molly): The small quantity is 0.5 grams, and the commercial quantity is 10 grams. The seized amount of 5 grams was also categorized as an intermediate quantity.

The court explicitly noted that because the seized drugs were classified as an intermediate quantity (less than commercial quantity), the rigors of Section 37 of the NDPS Act will not attract, and the bail factors become similar to those under normal statutes, “unless the prosecution points towards exceptional circumstances.” Section 37 imposes strict conditions for bail when dealing with commercial quantities.

Disparity in Bail Ruling: The Role of Criminal Antecedents

Despite the quantity falling in the intermediate range, the court treated the two petitioners differently based on their backgrounds and records.

Rejection for Mohammed Shakir (Petitioner No. 2)

The court received a detailed report from the investigating agency outlining the extensive criminal history of Petitioner No. 2, Mohammed Shakir. His past cases included:

• Cr. No. 15/2021, 16/2021, 17/2021, 18/2021, 19/2021 of Mangalore Barke PS (involving charges like Unlawful Assembly, Assault on Public Servant, Attempt to Murder, etc.).
• Cr. No. 160/2015 of Kadaba PS and Cr. No. 160/2015 of Vittla PS (including offenses under Section 392 IPC—Robbery).
• Cr. No. 147/2016 for an NDPS Act offence of Puttur Town PS.
• Cr. No. 175/2020 (Theft).

Citing judicial precedents from the Hon’ble Apex Court (e.g., State of Kerala Vs. Mahesh) and the Hon’ble High Court of Karnataka, the court emphasized that in cases involving heinous offences, the criminal antecedents, severity of punishment, and danger of absconding or tampering with evidence must be carefully considered. The Judge concluded, “He is also prosecuted in another NDPS case. Therefore, on looking to the criminal antecedents of petitioner No. 2, I feel he is not entitled for bail in this case.”

Granting Bail for Anas @ Prince (Petitioner No. 1)

In stark contrast, the court found that Petitioner No. 1, Anas @ Prince, was not having any criminal antecedents. Given that the rigors of Section 37 were inapplicable and the petitioner had a clean record, the court decided that enlarging him on bail would not hamper the investigation or trial. The court stated that the prosecution’s apprehension of him absconding or protracting the trial could be “compensated by imposing stringent conditions.”

Final Order and Conditions

The court accordingly passed the following order:

• The petition filed by Petitioner No. 2 (Mohammed Shakir) was rejected.
• The petition filed by Petitioner No. 1 (Anas @ Prince) was allowed.

Anas @ Prince was ordered to be released on bail upon executing a personal bond for Rs. 1,00,000/- with two sureties for the like sum, subject to stringent conditions including:

1. Giving attendance before the concerned Investigating Officer (I.O.) once a month (preferably on the first Monday) between 10:00 am and 2:00 pm until the charge sheet is filed.
2. Not leaving the court’s jurisdiction without prior permission.
3. Not tampering with witnesses or absconding.
4. Cooperation with the I.O. for investigation.
5. Not committing similar or any other offence while on bail.
6. Regular appearance before the court on all hearing dates.

This judgment serves as a clear illustration of how the judiciary meticulously weighs the individual circumstances, including criminal history, even when the statutory bar under Section 37 of the NDPS Act is not fully applicable.