In a significant judicial order delivered by the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru, the court allowed the bail application filed by Mohammed Abunasar (Accused No. 1). The case, registered by the RT Nagar Police Station under Crime No. 333/2022, pertains to the alleged possession and sale of ganja. The court’s order clarifies key principles regarding the classification of drug quantities under the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985, and the applicability of Section 37 bail restrictions.

Background of the Case

The criminal proceedings commenced on November 28, 2022, when the Police Sub-Inspector (PSI) of RT Nagar Police Station received credible information at approximately 4:40 PM. The report indicated that an individual was selling prohibited contraband to the public on Venkateshwara Temple Road, Matadahalli.

Upon receiving the information, the complainant informed the Assistant Commissioner of Police (ACP), secured independent witnesses (panchas), and prepared the police team for a raid. At around 5:20 PM, the team arrived at the location and mounted surveillance. They intercepted a suspect carrying a bag, who identified himself as Mohammed Abunasar, aged 19, residing in Araria, Bihar.

Upon inspecting the bag, police discovered 43 small packets containing ganja with a total weight of 1 kilogram and 650 grams. The police seized the contraband under a spot mahazar and registered a case under Section 20(b)(ii)(B) of the NDPS Act. The petitioner was arrested and remanded to judicial custody.

Contentions of the Petitioner

Represented by advocate Sri Vasim Pasha, Mohammed Abunasar filed a petition under Section 439 of the Code of Criminal Procedure (Cr.P.C.) seeking bail. The key grounds presented included:

• False Implication and Innocence: The petitioner asserted he was innocent, had no knowledge of the crime, and was falsely implicated by police at the instance of extraneous elements.
• Non-Compliance with Statutory Safeguards: It was contended that mandatory provisions under Section 50 as well as Sections 41, 42, 52, and 47 of the NDPS Act were not complied with during the search.
• Classification of Quantity: The defense emphasized that the seized quantity of 1.65 kg was not a commercial quantity.
• Personal Circumstances: The petitioner, a 19-year-old, stated he was the sole breadwinner for his family with no prior criminal antecedents.
• Willingness to Comply: He expressed readiness to furnish sureties and abide by all conditions imposed by the court.

Prosecution’s Objections

The prosecution, represented by the Public Prosecutor, opposed the bail application on the following grounds:

• Seizure of Contraband: Police seized 1.65 kg of ganja from the direct possession of the petitioner after conducting a personal search and spot mahazar.
• Gravity of Offence: The offence carries a potential punishment of rigorous imprisonment extending up to 10 years and a fine.
• Risk of Absconding: Alleging that the petitioner was a habitual drug dealer, the prosecution argued that granting bail might lead to him absconding or hampering the ongoing investigation.

Court’s Findings and Legal Analysis

The presiding judge, Smt. B.S. Jayashree, analyzed the materials on record and focused on whether the contraband quantity triggered the strict requirements of Section 37 of the NDPS Act.

Intermediate Quantity Classification

According to Notification S.O.1055(E) issued by the Ministry of Finance (Department of Revenue) on October 19, 2001 (Sl. No. 55):

• Small Quantity for Ganja: Up to 1,000 grams (1 kg).
• Commercial Quantity for Ganja: 20 kilograms or more.

The court noted that the seized quantity of 1 kg 650 grams falls between small and commercial thresholds, placing it in the category of an intermediate quantity.

Applicability of Precedents and Section 37 NDPS Act

The court relied on the Supreme Court judgment in Birbal Prasad v. State of Bihar (2018 11 SCC 488), where bail was granted for possession of 14 kg of ganja (a non-commercial quantity) in the absence of prior criminal records.

Applying this precedent, the court highlighted:

1. When the contraband quantity is below commercial limits, the strict rigors of Section 37 of the NDPS Act do not apply.
2. Bail considerations for non-commercial quantities revert to normal principles under the Cr.P.C. unless exceptional circumstances are demonstrated.
3. The major portion of the investigation was complete as the incriminatory material had already been seized and the petitioner’s voluntary statement recorded.
4. The alleged offence is not punishable by death or life imprisonment, making further custodial interrogation unnecessary.
5. Concerns regarding trial delay or flight risk can be effectively addressed by imposing strict conditions.

Final Order and Conditions Imposed

Answering Point No. 1 in the affirmative, the court allowed Crl.Misc.No.12187/2022 on December 19, 2022, granting bail to Mohammed Abunasar.

Terms of Bail:

1. Personal Bond: Execution of a personal bond for Rs. 1,00,000/- with two sureties for a similar sum.
2. Police Attendance: Reporting to the Investigating Officer once a month (preferably the first Monday) between 10:00 AM and 2:00 PM until the charge sheet is filed or further orders are issued.
3. Jurisdiction: Refraining from leaving the jurisdiction of the court without prior permission.
4. Non-Interference: Refraining from tampering with prosecution witnesses or absconding.
5. Investigation Cooperation: Fully cooperating with the Investigating Officer during investigation.
6. No Re-offending: Refraining from committing similar or other offences while on bail.
7. Identity Verification: Submitting photo ID proof and local address proof documents for himself and his sureties.
8. Court Appearance: Attending court on all scheduled hearing dates.

The court noted that any violation of these conditions would result in the cancellation of the bail.