In a notable judicial order, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases in Bengaluru dismissed the bail application filed by Kanada S (Accused No. 6) and Nandish S (Accused No. 7). Presided over by Smt. B.S. Jayashree, the Special Court delivered its ruling in Criminal Miscellaneous Petition No. 7110/2022 on July 27, 2022, holding that the seizure of a commercial quantity of contraband attracted the mandatory statutory bar under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Background of the Prosecution Case
The criminal law was set into motion following a report by the Police Sub-Inspector of Begur Police Station. On June 17, 2022, officers received information regarding the sale of Ganja by an unknown individual in a vacant plot near Basapura Main Road, Bengaluru. A suo-moto case in Crime No. 162/2022 was registered under Section 20(B) of the NDPS Act.
Following authorization from senior officials, a police team conducted a raid and apprehended Accused No. 1, recovering 1.19 kg of Ganja. During interrogation, Accused No. 1 disclosed that he procured contraband from associates in Odisha. Further investigative steps led to sequential apprehensions:
- June 21, 2022: Accused Nos. 2 and 3 were intercepted at Subashnagar near Nice Road Bridge, resulting in the seizure of 3.53 kg of Ganja.
- June 26, 2022: Acting on voluntary statements, officers apprehended Accused No. 4 at Koodlu Gate Subway with 3 kg of Ganja.
- June 26, 2022 (Evening): Based on further intelligence regarding suppliers from Mysuru and Kollegala, officers intercepted a white Suzuki Ciaz car (registration KA 12 Z 6644) at Basava Circle, Begur-Koppa Road. Accused Nos. 5 to 8 (including petitioners Kanada S and Nandish S) were apprehended in the vehicle, and 36.854 kg of Ganja was recovered from the car.
The cumulative quantity of Ganja seized across all arrests in Crime No. 162/2022 totaled 48.93 kg.
Arguments Presented by the Petitioners
Seeking regular bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.), the petitioners, represented by Sri Mallesha V., Advocate, submitted:
- Innocence and False Implication: The petitioners maintained complete innocence, asserting they were falsely implicated by the police with no actual connection to the seized drugs.
- Procedural Violations: The defense argued that mandatory provisions governing search and seizure under the NDPS Act were violated, creating procedural impropriety.
- Investigation Status: Counsel argued that major portions of the investigation were complete, rendering further custodial detention unnecessary.
- Permanent Residence & Compliance: The petitioners stated they are permanent residents of Bengaluru and Mysuru, respectively, and expressed readiness to abide by court-imposed conditions and furnish solvent sureties.
Objections by the Prosecution
The Public Prosecutor strongly opposed the bail petition, asserting:
- A total of 48.93 kg of Ganja was recovered in the case, with 36.854 kg directly seized from the vehicle occupied by the petitioners (Accused Nos. 5 to 8).
- The seized quantity far exceeds the commercial threshold, making the offence punishable with rigorous imprisonment of up to 20 years along with monetary fines.
- There was clear prima facie evidence linking the petitioners to organized drug peddling, and releasing them posed severe risks of absconding, evidence tampering, or reoffending.
Court’s Analysis and Statutory Findings
The Special Court evaluated the classification of the seized contraband, the mandatory provisions of Section 37 of the NDPS Act, and binding Supreme Court jurisprudence.
Classification of Contraband Quantity
Under Notification S.O. 1055(E) dated October 19, 2001 (Sl. No. 55), issued by the Ministry of Finance (Department of Revenue):
- Small Quantity (Ganja): Up to 1,000 grams (1 kg)
- Commercial Quantity (Ganja): 20 kilograms and above
Because 36.854 kg of Ganja was recovered directly from the vehicle carrying Accused Nos. 5 to 8, the court confirmed that the seized contraband constituted a commercial quantity.
Rigors of Section 37 NDPS Act and Judicial Precedents
The court emphasized that for commercial quantity cases under the NDPS Act, Section 37(1)(b) establishes a strict statutory bar where negation of bail is the rule and grant of bail is an exception. The court cited key Supreme Court precedents:
- Union of India v. Md. Nawaz Khan [Crl. Appeal No. 1043/2021]: The Apex Court emphasized that courts must evaluate whether reasonable grounds exist to believe the accused is not guilty and is not likely to commit an offence while on bail. Issues regarding procedural compliance under Section 42 are matters of fact to be established during trial.
- State of Kerala v. Rajesh [(2020) 12 SCC 122]: The Supreme Court held that “reasonable grounds” requires substantial probable cause to believe that the accused is not guilty. A liberal approach to bail in commercial NDPS cases is improper.
- State of M.P. v. Kajad [(2001) 7 SCC 673]: The Supreme Court clarified that conditions specified under Section 37 are in addition to Cr.P.C. limitations, and liberal grant of bail under the NDPS Act is uncalled for.
- Babua v. State of Orissa [(2001) 2 SCC 566]: The Supreme Court ruled that societal interest in curbing drug trafficking outweighs individual liberty considerations, requiring detention during proceedings unless non-guilt is clearly established.
The Special Court noted that the petitioners were apprehended in conscious possession of a large commercial consignment of Ganja, and the defense failed to present any material establishing reasonable grounds of non-guilt.
Final Order
Finding no grounds to satisfy the twin conditions under Section 37 of the NDPS Act, the Special Court answered Point No. 1 in the negative and formally rejected the bail application filed by Kanada S and Nandish S under Section 439 Cr.P.C.