A Special Court for Narcotic Drugs and Psychotropic Substances in Bengaluru has granted bail to Yasir Arfath alias Fayaz, who was arrested by the Kengeri Police for allegedly selling Ganja. The order, delivered on September 16, 2022, by Smt. B.S. Jayashree, the XXXIII Additional City Civil and Sessions Judge and Special Judge, emphasizes that the quantity of contraband seized falls under the “intermediate” category, making the stringent bail restrictions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, inapplicable.
The petitioner, a 33-year-old resident of Rajajinagara, had been in judicial custody since his arrest on February 3, 2022. The case was registered under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, following a police raid near Forest Layout.
Background of the Kengeri Police Raid
According to the prosecution, the Kengeri Police received credible intelligence on February 3, 2022, regarding two individuals selling Ganja to the public and college students from a motorcycle. Acting on this tip, a police team mounted surveillance near the ICI office.
The police apprehended two suspects identified by an informant. Upon checking a bag in their possession, the authorities discovered 1 kilogram and 200 grams of Ganja. The contraband was weighed and seized under a detailed mahazar in the presence of witnesses. The suspects were subsequently arrested and remanded to judicial custody.
Arguments Presented for the Defense and Prosecution
The counsel for Yasir Arfath argued that the petitioner is a law-abiding citizen with no criminal antecedents and is the sole breadwinner for his family. The defense contended that the petitioner was falsely implicated and that the mandatory procedural requirements under Sections 41, 42, and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985—which govern search and seizure protocols—were not strictly followed.
Furthermore, the defense highlighted that the quantity of Ganja seized (1.2 kilograms) is far below the “commercial quantity” threshold. They argued that since the investigation was largely complete and the petitioner had permanent roots in Bengaluru, there was no risk of him fleeing from justice.
The Public Prosecutor strongly opposed the bail application, characterizing the petitioner as a habitual dealer. The state argued that the offence carries a potential sentence of up to 10 years of rigorous imprisonment and expressed concerns that the accused might abscond or hamper the investigation if released.
Judicial Reasoning: Intermediate Quantity and Section 37
In evaluating the petition, the Court focused primarily on the quantity of the seized substance. Under Ministry of Finance Notification S.O.1055(E), for the drug Ganja, 1,000 grams (1 kg) is considered a “small quantity,” while 20 kilograms is classified as a “commercial quantity.”
The Court noted that the 1.2 kilograms of Ganja involved in this case constitutes an “intermediate quantity.” Judge Jayashree observed that when the quantity is less than commercial, the “rigors of Section 37” of the Narcotic Drugs and Psychotropic Substances Act, 1985, do not apply. Section 37 typically requires the court to be satisfied that there are reasonable grounds to believe the accused is not guilty before granting bail. However, for intermediate quantities, bail is governed by more liberal standard criminal procedures.
The Court cited the Supreme Court decision in Birbal Prasad Vs. State of Bihar (2018), where it was held that in cases of non-commercial quantities where the accused is not involved in other cases, bail should generally be granted pending trial.
Conditions for Release
Finding that custodial interrogation was no longer necessary and the major portion of the investigation was concluded, the Court allowed the bail petition. Yasir Arfath was ordered to be released on a personal bond of 1,00,000 rupees with two sureties of the same amount.
To ensure the integrity of the ongoing legal process, the Court imposed the following conditions:
- The petitioner must report to the Investigating Officer on the first Monday of every month until the charge sheet is filed.
- He is prohibited from leaving the jurisdiction of the court without prior permission.
- He must not tamper with prosecution witnesses or evidence.
- He must cooperate fully with the investigation.
- He is strictly prohibited from committing any similar offences while on bail.
- He must provide valid photo identity proof for himself and his sureties.
The Judge concluded that any breach of these conditions would lead to the automatic cancellation of the bail. This ruling underscores the judicial distinction between casual possession and large-scale commercial trafficking in narcotics cases.