Bengaluru, April 5, 2024 – The XXXIII Additional City Civil and Sessions Judge & Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, granted bail to petitioner Fayaz Ahmed (Accused No. 1) in a case registered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The order, pronounced on April 5, 2024, pertained to Crl.Misc. No. 2997/2024, arising from Crime No. 105/2024 filed by the State by Devarajeevanahalli Police Station for the offence punishable under Section 20(b) of the NDPS Act.
The petitioner, Fayaz Ahmed, aged 29, son of Irshad Ahmed, had sought bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.) following his arrest in connection with the seizure of Ganja.
Summary of Allegations and Arrest
The case originated from a complaint presented by the Police Sub-Inspector (PSI) of Devarajeevanahalli Police Station. The core allegation is that on March 8, 2024, at approximately 3:00 PM, the complainant, while on patrol, received credible information that a person was selling prohibited drugs near Edga Mohalla ground, Modi Road, DJ Halli, Bangalore.
Upon obtaining permission from a higher officer, the PSI and staff, along with panchas (independent witnesses), proceeded to the spot and apprehended the accused, later identified as Fayaz Ahmed. When questioned about the contents of a bag in his possession, the accused reportedly admitted to carrying Ganja.
The subsequent search and seizure, formalized under a mahazar, resulted in the recovery of 7 Kgs and 800 grams of Ganja. Following the arrest, a case was registered, and the accused was remanded to judicial custody.
Petitioner’s Defense and Prosecution’s Opposition
The petitioner’s counsel, Sri PGV, argued that Fayaz Ahmed was innocent, falsely implicated, and that the procedures contemplated under the NDPS Act for recovery were not followed. Crucially, the defense emphasized that the seized quantity was not a commercial quantity, thereby seeking to bypass the severe bail restrictions of Section 37 of the NDPS Act. The petitioner assured the court of his permanent residence and willingness to abide by any conditions imposed.
The prosecution, represented by the Public Prosecutor, vehemently opposed the bail plea. They highlighted the seizure of 7 Kgs and 800 grams of Ganja and argued that the evidence was sufficient to warrant prosecution. The prosecution pointed out that the offence is punishable with rigorous imprisonment for a term of not less than 10 years and up to 20 years, along with a fine. The prosecution also expressed apprehension that if released, the petitioner might tamper with witnesses, abscond, or involve himself in similar offences, potentially “ruining the career of the younger generation.”
Court’s Legal Analysis: Intermediate Quantity
The central point of the court’s consideration was the classification of the seized contraband. To determine this, the court referred to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001, specifically at Serial No. 55 for Ganja.
The established legal thresholds for Ganja are:
- Small Quantity: 1,000 grams (1 Kg)
- Commercial Quantity: 20 Kgs
Since the quantity of Ganja seized from Fayaz Ahmed was 7 Kgs and 800 grams, the court categorized this amount as an intermediate quantity, falling between the small and commercial thresholds.
The court then applied the precedent set by the Hon’ble Apex Court in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488). In that case, the Supreme Court held that where the quantity involved is a non-commercial quantity (14 Kgs of Ganja in that instance), the accused should be released on bail pending trial.
Based on this binding precedent, the Bengaluru court concluded that the contraband seized was an intermediate quantity and not a commercial quantity. This finding is paramount because it dictates that the harsh “rigors of Section 37 of the NDPS Act” will not apply.
Section 37 imposes two strict conditions for granting bail in cases involving commercial quantity: the court must be satisfied there are reasonable grounds for believing the accused is not guilty, and that the accused is not likely to commit any offence while on bail. By classifying the quantity as intermediate, the court was able to consider the bail petition under the “normal” standards applicable under regular statutes, rather than the severe restrictions of the NDPS Act.
Conclusion and Imposed Conditions
The court further noted that the major portion of the investigation was concluded, and further custodial interrogation was not warranted. The offence is not punishable with death or imprisonment for life. Given the petitioner’s permanent address, the court determined that the prosecution’s apprehension of flight or evidence tampering could be adequately addressed through stringent conditions.
The court, therefore, allowed the petition and ordered the release of Fayaz Ahmed on bail.
The petitioner was enlarged on bail upon executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh) with two sureties for the like sum, subject to the following conditions:
- The petitioner 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.
- He shall not leave the jurisdiction of the court without prior permission.
- He shall not tamper with the witness or abscond.
- He shall cooperate with the I.O. for investigation.
- He shall not commit a similar offence or any offence while on bail.
- He shall furnish his photo ID proof and local address proof document before the court and photo ID proof of his sureties.
- He shall appear before the court on all hearing dates.
- Breach of any of the conditions by the petitioner would entail cancellation of bail.