In a notable ruling, the XXXIII Addl. City Civil & Sessions Judge and Special Judge (NDPS) at Bengaluru, Smt. B.S. Jayashree, LL.M., granted bail to Arif Pasha @ Moula, the petitioner and accused No. 1, in a case involving the seizure of $1$ Kg $550$ grams of Ganja. The order, delivered on November 18, 2022, in Crl. Misc. No. 10918/2022, found that the seized quantity was intermediate and therefore the stringent rigors of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, did not apply.
The petitioner, Arif Pasha @ Moula, S/o. Inayath Pasha, aged 32 years, a resident of Deepanjali Nagar, Mysuru Road, Bengaluru, was arrested in connection with Crime No. 280/2022 registered by the Rajarajeshwari Nagar Police Station for the offence punishable under Section $20\text{B}$ of the NDPS Act, which deals with offences relating to cannabis. The petition for bail was filed under Section $439$ of the Cr.P.C.
Petitioner’s Arguments and Prosecution’s Objections
Arif Pasha’s counsel, Sri. Muralidhar.G, argued that the petitioner was innocent, falsely implicated, and unaware of the alleged crime. Key grounds for the bail plea included the assertion that no contraband was seized from the petitioner’s direct possession, non-compliance with the mandatory provisions of Section 50 of the NDPS Act, and the lack of eye witnesses to the sale of the alleged contraband. The defence also highlighted that the offence, while non-bailable, was not punishable with imprisonment for life or death and affirmed the petitioner’s status as the sole bread earner for his family, ready to abide by any conditions imposed by the court.
The prosecution, represented by the Public Prosecutor, vehemently opposed the bail application. They contended that the investigating agency had successfully seized $1$ Kg $550$ grams of Ganja from the accused, with a detailed mahazar drawn at the spot. The prosecution asserted a strong prima facie case, labelling the accused as a “habitual drug dealer” and arguing that his release would lead to absconding and hampering the investigation. They emphasized that the alleged offence is punishable with rigorous imprisonment up to $10$ years.
The Court’s Critical Analysis of Seized Quantity
The Special Judge meticulously analysed the core point of contention: the quantum of the seized narcotic substance. The court noted that the prosecution’s case rested on the allegation that on October 31, 2022, based on credible information, the complainant (ASI of Rajarajeshwari Nagar P.S.) and staff, along with panchas and the ACP, conducted a raid near Ideal Homes Layout Park. They apprehended the petitioner, who was moving suspiciously with a white bag, and upon personal search in the presence of the ACP, $1$ Kg $550$ grams of Ganja were seized under a mahazar.
The court then referred to the statutory classifications for Ganja as specified in the Ministry of Finance Department of Revenue Notification S.O. $1055(\text{E})$ dated $19.10.2001$:
- Small Quantity: Up to $1000$ grams ($1$ Kg).
- Commercial Quantity: $20$ Kgs and above.
The court definitively concluded that $1$ Kg $550$ grams of Ganja falls under the category of Intermediate Quantity (lying between small and commercial quantities).
Applicability of Section 37 of NDPS Act
This finding was critical because Section 37 of the NDPS Act imposes very strict conditions for granting bail, particularly when the quantity involved is commercial. The court ruled that since the quantity seized was less than the commercial quantity, the rigors of Section 37 of the NDPS Act will not attract. Consequently, the bail application was to be considered under the normal principles of bail petitions, unless exceptional circumstances were proven by the prosecution, which the court found were not established.
The court also cited the decision of the Hon’ble Apex Court in Birbal Prasad Vs. State of Bihar ($2018$ $11$ $\text{SCC}$ $488$), where the Supreme Court granted bail in a case involving $14$ Kgs of Ganja (an intermediate quantity), further supporting the decision to consider the petitioner’s bail plea.
Considering that the major portion of the investigation was concluded (the seizure was complete) and further custodial interrogation was not warranted as the petitioner’s voluntary statement was already recorded, the court determined that the apprehension of the prosecution regarding absconding could be addressed by imposing stringent conditions. The point for consideration was answered “In the Affirmative.”
Bail Conditions
The petitioner was granted bail on the execution of a personal bond for a sum of $\text{Rs. 1,00,000/}$ (Rupees One Lakh) with two sureties for the like sum. The release is subject to the following stringent conditions:
- Attendance before I.O.: The petitioner shall attend before the concerned Investigating Officer (I.O.) once a month, preferably on the first Monday of every month between $\text{10:00 a.m.}$ to $\text{2:00 p.m.}$, until the filing of the charge sheet or further orders.
- Jurisdiction: He shall not leave the jurisdiction of the court without prior permission.
- Witnesses: He shall not tamper with witnesses or abscond.
- Cooperation: He shall cooperate with the I.O. for investigation.
- New Offence: He shall not commit a similar offence or any offence while on bail.
- Documentation: He shall furnish his photo ID proof and local address proof document before the court, along with photo ID proof of his sureties.
- Court Dates: He shall appear before the court on all hearing dates.
- Breach: Breach of any of the conditions would entail cancellation of bail.