Bengaluru, December 9, 2022 – The XXXIII Additional City Civil and Sessions Judge & Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, granted bail to three petitioners, Chethan, Harish @ Sonu, and Arbaz, in a drug seizure case registered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The order, delivered on December 9, 2022, pertains to Crl.Misc. No. 11595/2022, arising from Crime No. 276/2022 of the Amruthahalli Police Station for the offence punishable under Section 22(B) of the NDPS Act.

The petitioners, who were accused Nos. 2, 3, and 4 in the case, had approached the court under Section 439 of the Code of Criminal Procedure (Cr.P.C.) seeking regular bail.

Details of the Arrest and Allegations

The case was initiated based on a complaint filed by the Police Inspector (PI) of Amruthahalli Police Station. According to the prosecution’s report, on November 22, 2022, at around 6:45 PM, the complainant received credible information regarding 4 to 5 persons selling Ganja on Sindhi College Road within the police station limits, using two-wheelers and an auto-rickshaw.

A raid was conducted after obtaining permission from the Assistant Commissioner of Police. The police team surrounded six persons, five of whom were apprehended, while one person, Sharavana, managed to escape. The apprehended individuals were identified as Rizwan (Accused No. 1), Chethan, Harish, Arbaz, and Venkat.

Upon searching the bags carried by the accused, the following seizures were recorded:

• Each of the accused (Nos. 1 to 5) was found to be carrying a bag containing 100 grams of Ganja.
• Accused No. 1, Rizwan, was also found in possession of 2 grams of MDMA along with his 100 grams of Ganja.

The total quantity seized was 500 grams of Ganja and 2 grams of MDMA. A case was registered under Section 22(B) of the NDPS Act, and the accused were subsequently remanded to judicial custody.

Arguments Presented

The petitioners, through their counsel Sri. Narayanaswamy, argued that they were innocent, falsely implicated, and unaware of the seized drugs. They contended that no contraband was seized directly from their possession (a claim contradicted by the prosecution’s report, though the court focused on the quantity). Key legal arguments included:

1. The seized articles did not constitute a “commercial quantity.”
2. Mandatory provisions of the NDPS Act, such as Section 50 (regarding personal search), were allegedly not complied with.
3. The offence is non-bailable but not punishable with death or life imprisonment.

The prosecution, represented by the Public Prosecutor, strongly opposed the bail plea, emphasizing the recovery of both MDMA and Ganja. They argued that the accused were “habitual drug dealers,” and releasing them on bail would lead to them absconding and hindering the investigation.

Judicial Analysis on Quantity and NDPS Rigours

The court’s decision hinged on the classification of the seized contraband quantities, which determines the applicability of the stringent bail restrictions under Section 37 of the NDPS Act.

Referring to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001 (Sl. No. 55 for Ganja), the court established the following:

• Ganja: 1,000 grams (1 Kg) is the “small quantity,” and 20 Kgs is the “commercial quantity.” The total Ganja seized (500 grams) is less than the small quantity.
• MDMA: While the total MDMA seized (2 grams) was found in the bag of Accused No. 1, the court specifically noted that from the petitioners (Accused Nos. 2, 3, and 4), only 100 grams of Ganja each was seized.

Based on the quantum of Ganja seized from each of the petitioners being 100 grams, the court concluded that the quantity was below the small quantity threshold (1,000 grams). The offence attracted to the present petitioners was therefore considered under Section 20(b)(ii)(a) of the NDPS Act, which carries a punishment of imprisonment up to 1 year and a fine.

Crucially, the court held that when the quantity is less than the commercial quantity, the rigorous conditions of Section 37 of the NDPS Act will not attract. This allows the court to treat the bail petition under normal legal statutes.

Conclusion and Bail Conditions

The court noted that the major part of the investigation was concluded as the incriminating articles had already been seized. Since the offence is not punishable with death or life imprisonment and further custodial interrogation was deemed unnecessary, the court found sufficient grounds to grant bail. The apprehension of the prosecution regarding flight risk could be compensated by imposing stringent conditions.

The court allowed the petition, ordering the release of Chethan, Harish @ Sonu, and Arbaz on bail.

Each petitioner was directed to execute a personal bond for a sum of Rs. 50,000/- with one surety for the like sum, subject to the following eight conditions:

1. The petitioners shall 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.
2. They shall not leave the jurisdiction of the court without prior permission.
3. They shall not tamper with the witness or abscond.
4. They shall cooperate with the I.O. for investigation.
5. They shall not commit a similar offence or any offence while on bail.
6. They shall furnish their photo ID proof and local address proof documents before the court, along with the photo ID proof of their sureties.
7. They shall appear before the court on all hearing dates.
8. Breach of any of the conditions would entail the cancellation of bail.

The judgment underscores the critical difference in the treatment of NDPS cases based on whether the quantity of contraband seized falls under small, intermediate, or commercial categories.