BENGALURU: The XXXIII Addl. City Civil & Sessions Judge and Special Judge (NDPS) at Bengaluru, Smt. B.S. Jayashree, has granted bail to Debendra Golari, a 26-year-old resident of Odisha, in a case involving the seizure of $5$ Kgs and $100$ grams of Ganja.
The order, pronounced on June 24, 2022, in Crl.Misc.No.5964/2022, allows the petitioner, Debendra Golari, to be released on bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.) in connection with Cr.No.106/2022 registered by the Jigani Police Station for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Allegations of Seizure and Prosecution’s Objections
The case against Debendra Golari originated from a report submitted by the Police Inspector (PI) of the Jigani Police Station. According to the report, on June 13, 2022, the PI received credible information that a person was illegally selling Ganja near Dena Bank, Behind Gail Gas, Jigani Industrial area. After informing the higher officer and obtaining permission for a raid, the PI and his team apprehended the suspected person, later identified as the petitioner.
During the personal search, the police allegedly seized $5$ Kgs and $100$ grams of Ganja. A detailed seizure panchanama (spot memo) was drawn up, and a case was registered. The accused was subsequently arrested and remanded to judicial custody.
The prosecution strongly opposed the bail petition, arguing that the quantity of Ganja seized was substantial, and the petitioner was a “habitual drug dealer.” They contended that the offence is punishable with rigorous imprisonment up to $10$ years and that granting bail would risk the accused absconding and hampering the investigation.
Defence Argument and Key Legal Contention
The petitioner, represented by counsel Sri S.H., maintained his innocence, claiming he was falsely implicated and had no knowledge of the alleged crime. The defence focused primarily on two key legal points:
- Non-Compliance with Procedure: The mandatory provisions of search and seizure under Sections 41, 42, 50, 52, and 47 of the NDPS Act were allegedly not complied with by the police.
- Quantity Classification: The seized article was not a “commercial quantity,” which is essential for attracting the stringent provisions of Section 37 of the NDPS Act.
The petitioner also assured the court of his willingness to abide by any conditions imposed and asserted his permanent address in Odisha and his current temporary residence in Bengaluru, arguing against the likelihood of absconding.
Judicial Reasoning and Interpretation of NDPS Act
The court’s decision hinged on the classification of the seized quantity of Ganja. The Judge noted that the petitioner has been in judicial custody since his arrest on June 13, 2022, and proceeded to analyze the quantity seized under the relevant statutory provisions.
The court referenced the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001 (Sl.No.55), which outlines the thresholds for Ganja:
- Small Quantity: $1000$ grams ($1$ Kg)
- Commercial Quantity: $20$ Kgs
Since the seized quantity was $5$ Kgs and $100$ grams, the court concluded that it falls within the “intermediate quantity” bracket—a quantity greater than the small quantity but less than the commercial quantity.
Crucially, the court relied on the precedent set by the Hon’ble Apex Court in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488). In this case, the Supreme Court had granted bail where $14$ Kgs of Ganja was seized (a non-commercial quantity), ruling that the appellant should be released on bail pending trial.
Applying this ratio, the Judge determined: “The said case law aptly applies to the case on hand in holding that the contraband seized in the case on hand is intermediate quantity and it is not commercial quantity.”
The court stressed that when the quantity is less than the commercial quantity, the “rigors of Sec.37 of the NDPS Act will not attract,” and the factors for bail consideration revert to the standards applicable under normal statutes, unless the prosecution can demonstrate exceptional circumstances.
Conclusion on Investigation and Bail
Finding that the major portion of the investigation was concluded since the incriminatory article had already been seized, and noting that the offence is not punishable with death or imprisonment for life, the court found that further custodial interrogation was not warranted. The court was satisfied that the apprehension of the prosecution—that the accused might abscond—could be met by imposing stringent conditions, especially considering the petitioner’s permanent address information.
In the result, the court answered the point for consideration in the affirmative and allowed the bail petition.
Conditions for Release
Debendra Golari was enlarged on bail upon executing a personal bond for a sum of ₹1,00,000/- (Rupees One Lakh) with two sureties for the like sum, subject to the following conditions:
- Police Attendance: The petitioner must give attendance before the concerned Investigating Officer (I.O.) once a month, preferably on the first Monday of every month between 10:00 am and 2:00 pm, until the filing of the charge sheet or further orders.
- Jurisdiction: He shall not leave the jurisdiction of the court without prior permission.
- Non-Interference: He shall not tamper with the witnesses or abscond.
- Cooperation: He shall co-operate with the I.O. for investigation.
- Conduct: 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 the photo ID proof of his sureties.
- Court Appearance: He shall appear before the court on all dates of hearing.
The court explicitly warned that “Breach of any of the conditions by the petitioner would entail cancellation of bail.”