In a significant judicial order passed on December 21, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., allowed the bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 12398/2022. The court enlarged Sadhak Chakma (Accused No. 1) and Milton Chakma (Accused No. 2) on regular bail in connection with Crime No. 241/2022 registered by the Adugodi Police Station. The petitioners were facing prosecution for offences punishable under Section 20(b)(ii)(B) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal law was set into motion based on a report submitted by the Police Sub-Inspector (PSI) of Adugodi Police Station. According to the prosecution’s case, on December 13, 2022, at around 4:30 PM, the complainant PSI and police personnel were conducting routine patrolling within their jurisdictional limits. At approximately 4:45 PM, while proceeding on 1st Main Road, Pothlappa Garden, Hosur Road, Bengaluru, the police team noticed two individuals standing in a suspicious manner holding bags.

The police officers surrounded and apprehended both individuals. Upon preliminary interrogation, they disclosed their identities as Sadhak Chakma, aged 24 years, and Milton Chakma, aged 25 years, both residing at No. 26-B, St. Philomena Hospital Road, Opposite Manyata Tech Park, Nagawara, Bengaluru. A search of the bags in their possession led to the recovery of ganja weighing a total of 7 kilograms and 600 grams.

The police seized the contraband under a spot seizure mahazar, prepared a detailed report, and formally arrested both accused persons. They were subsequently produced before the jurisdictional magistrate and remanded to judicial custody. Based on the PSI’s report, Crime No. 241/2022 was registered under Section 20(b)(ii)(B) of the NDPS Act.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioners, learned advocate Sri K.U. Karthik Reddy urged several grounds seeking their enlarge on bail:

• False Implication: It was submitted that the petitioners are innocent, law-abiding citizens who were falsely implicated and planted in the case by the complainant police, having no knowledge of the alleged contraband.
• Non-Commercial Quantity: Defence counsel emphasized that the total quantity of ganja seized (7.6 kg) does not constitute a commercial quantity under the statutory notification.
• Non-Compliance with Statutory Rules: It was argued that the mandatory procedural safeguards prescribed under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the search and seizure operations.
• Custody and Antecedents: The petitioners asserted that they have no bad antecedents, are the sole earning members of their respective families, and being permanent residents at the address stated in the cause title, pose no flight risk. They expressed readiness to abide by any conditions and furnish reliable sureties.

Prosecution Objections

The Public Prosecutor strongly opposed the bail petition, raising the following objections:

• Possession of Narcotic Substance: The investigating agency recovered a substantial quantity of 7 kg 600 grams of ganja directly from the possession of the accused under a detailed spot mahazar.
• Gravity and Punishment: The alleged offence carries rigorous imprisonment that may extend up to 10 years along with a fine.
• Habitual Offending and Investigation Risks: The prosecution alleged a prima facie case against the petitioners, claiming they were habitual drug dealers. It was contended that if enlarged on bail, the petitioners would abscond, hamper the ongoing investigation, and prejudice the trial.

Judicial Analysis and Court Reasoning

The Special Judge evaluated the rival contentions and prosecution papers on record to decide Point No. 1: whether sufficient grounds were made out for granting bail.

1. Statutory Classification of Contraband

The court examined the Ministry of Finance (Department of Revenue) Notification S.O. 1055(E) dated October 19, 2001 (Entry Sl. No. 55). Under the notification:

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

The court observed that the 7.6 kg of ganja seized in this case falls above 1 kg but well below 20 kg, placing it explicitly in the category of an intermediate quantity (non-commercial quantity).

2. Non-Applicability of Section 37 Rigors and Precedent Analysis

The court underscored that when the seized contraband is less than a commercial quantity, the stringent statutory restrictions on bail under Section 37 of the NDPS Act do not apply. Consequently, the criteria for considering bail revert to standard principles under regular statutory framework, unless exceptional adverse circumstances are demonstrated.

In support of this proposition, the court relied on the Supreme Court ruling in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488]. In that matter, the Apex Court granted bail to an accused found in possession of 14 kg of ganja (a non-commercial quantity) who had no prior involvement in other cases. Holding that the precedent aptly applied to the present facts, the court ruled that the petitioners’ bail plea deserved favorable consideration.

3. Investigation Status and Custodial Necessity

The court noted that the major portion of the investigation was already concluded since the incriminatory contraband had been seized and the voluntary statements of the accused recorded. The alleged offence is not punishable with death or imprisonment for life, rendering further custodial interrogation unnecessary. Furthermore, the court held that the prosecution’s apprehension regarding flight risk or trial delay could be effectively compensated by imposing stringent conditions.

It is important to emphasize that a grant of bail at this interlocutory stage is purely a procedural relief and does not amount to a final determination of the accused persons’ guilt or innocence, which remains subject to trial.

Final Bail Order and Terms Directing Release

Answering Point No. 1 in the affirmative, Special Judge Smt. B.S. Jayashree allowed the petition filed under Section 439 Cr.P.C. and passed the following order:

The petitioners, Sadhak Chakma and Milton Chakma, are ordered to be enlarged on bail in Crime No. 241/2022 of Adugodi Police Station on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) each, with two sureties for the like sum, subject to the following conditions:

1. The petitioners shall mark their attendance before the concerned Investigating Officer 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, whichever is earlier.
2. They shall not leave the jurisdiction of the court without prior permission.
3. They shall not tamper with prosecution witnesses or abscond.
4. They shall co-operate with the Investigating Officer for the purpose of 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, along with photo ID proofs of their sureties, before the court.
7. They shall regularly appear before the court on all hearing dates.
8. Any breach of these conditions by the petitioners would entail automatic cancellation of their bail.