In a notable judicial order passed on July 19, 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. 6735/2022. The court enlarged Sahil Pasha (Accused No. 2) on regular bail in connection with Crime No. 232/2022 registered by the Kamakshipalya Police Station. The petitioner was facing prosecution for offences punishable under Sections 8(c) and 20(B) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings commenced following a report submitted by the Police Sub-Inspector (PSI) of Kamakshipalya Police Station. According to the prosecution case, on June 24, 2022, at approximately 11:30 PM, the complainant PSI was conducting patrolling duty near Sumanahalli bus stand when he observed an individual standing in a suspicious manner. Upon seeing the police team approach, the suspect attempted to flee from the spot. The police officers surrounded and apprehended him.

During preliminary interrogation, the individual disclosed his name and address, revealing that he was carrying ganja intended for sale to the public. Search of the bag carried by the accused yielded 1 kilogram and 300 grams of ganja. The police seized the contraband under a spot seizure panchanama, prepared a detailed report, and submitted it before the Station House Officer (SHO).

Based on this report, Crime No. 232/2022 was registered for offences punishable under Sections 8(c) and 20(B) of the NDPS Act. The petitioner, Sahil Pasha, aged about 22 years, residing at No. 71, 7th Cross, Sathagalli, K.S.C.B Layout, Mysore, arrayed as Accused No. 2 in the case, was formally arrested, produced before the jurisdictional Magistrate, and remanded to judicial custody.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri C.P. presented several grounds seeking his enlargement on regular bail:

• False Implication: It was submitted that the petitioner is very innocent, law-abiding, and was falsely planted in the case at the instance of extraneous elements without having any knowledge of the alleged contraband.
• Non-Commercial Quantity: Defence counsel argued that the seized contraband (1.3 kg of ganja) falls under the non-commercial threshold.
• Procedural Non-Compliance: The defence contended that mandatory provisions under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the search and recovery process.
• Custody and Absence of Antecedents: It was urged that there are no eyewitnesses testifying to the sale of the contraband, the petitioner has no bad antecedents, and he is the sole earning member of his family. Being a permanent resident of the address stated in the cause title, he promised to abide by court conditions and furnish adequate sureties.

Prosecution Objections

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

• Recovery of Narcotic Substance: Investigating authorities seized 1.3 kg of ganja directly from the possession of the accused under a detailed spot mahazar following a personal search.
• Gravity and Punishment: The alleged offence carries rigorous imprisonment for a term that may extend up to 10 years along with a fine.
• Apprehension of Absconding: The prosecution argued that a prima facie case exists establishing that the petitioner is a habitual drug dealer who, if released on bail, would abscond and hamper the ongoing investigation.

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 1 kg 300 grams 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.

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 the regular Cr.P.C. framework, unless exceptional adverse circumstances are demonstrated by the prosecution.

In support of this principle, the court relied on the Supreme Court ruling in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488], where the Apex Court granted bail to an accused found in possession of 14 kg of ganja (a non-commercial quantity) who had no prior criminal antecedents. Holding that the precedent aptly applied to the present facts, the court held that the petitioner’s 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 statement 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 person’s 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 petition filed by the petitioner under Section 439 of Cr.P.C. is hereby allowed. The petitioner, Sahil Pasha, is enlarged on bail in Crime No. 232/2022 of Kamakshipalya Police Station on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties for the like sum, subject to the following conditions:

1. The petitioner shall give 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, till filing of the charge-sheet or further orders, whichever is earlier.
2. He shall not leave the jurisdiction of this court without prior permission.
3. He shall not tamper with the witnesses or abscond.
4. He shall co-operate with the Investigating Officer for investigation.
5. He shall not commit a similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and local address proof document before the court along with photo ID proof of his sureties.
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioner would entail cancellation of bail.