In a significant judicial order delivered by the Court of the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS) at Bengaluru (CCH-33), Presiding Officer Smt. B.S. Jayashree, LL.M., dismissed the bail application filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.) by Saddam Pasha (Accused No. 1). The petitioner sought regular bail in connection with Crime No. 161/2022 registered by the Govindarajanagar Police Station for offences punishable under Section 20(B) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

The judicial ruling, pronounced on December 20, 2022, highlights the mandatory application of the stringent twin conditions under Section 37(1)(b) of the NDPS Act when a recovery involves a commercial quantity of narcotic substances, emphasizing that the liberty of an individual must be weighed against the broader protection of society from drug trafficking.

Background and Factual Matrix

The origin of the criminal prosecution traces back to August 22, 2022, at approximately 8:30 PM (20:30 hours), when the Police Sub-Inspector (PSI) of Govindarajanagar Police Station received credible information regarding drug peddling. The informant reported that two individuals were selling ganja from an autorickshaw on a public road near Prashanthanagar Vishnuvardhan Park, 10th V Cross, opposite Sundaram Nilaya, Bengaluru.

Upon receiving the information, the complainant officer complied with procedural protocols by recording the tip-off, notifying superior officers, and obtaining necessary statutory permission to conduct a raid. Accompanied by police staff and independent panchas (witnesses), the raiding team proceeded to the location and intercepted two individuals. Upon questioning, the suspects disclosed their identities, with Saddam Pasha, aged 25, residing opposite Kanakapura Slum in Vijayanagar, Bengaluru, arrayed as Accused No. 1.

A personal search conducted at the spot resulted in the recovery and seizure of 5 kilograms and 125 grams of ganja under a detailed spot seizure mahazar. Following the seizure, a formal report was prepared and submitted to the Station House Officer (SHO), forming the basis for registering Crime No. 161/2022 under Section 20(B) of the NDPS Act against Accused Nos. 1 and 2. The arrested persons were subsequently produced before the jurisdictional Magistrate and remanded to judicial custody.

During custodial interrogation on August 23, 2022, Saddam Pasha made a voluntary statement revealing that he had stored additional quantities of ganja at his residence. Acting on this disclosure, the investigating agency conducted a search raid at the petitioner’s house, leading to the recovery and seizure of an additional 15 kilograms and 275 grams of ganja. The cumulative recovery effected at the instance of the petitioner amounted to 20 kilograms and 400 grams of ganja.

Submissions of the Applicant

Represented by advocate Sri Siddalingappa S.G., the petitioner urged several grounds in support of his bail application under Section 439 Cr.P.C., including:

• Innocence and False Implication: The petitioner asserted that he is an innocent, law-abiding citizen who had not committed any offence and had been falsely implicated by the respondent police.
• Rooted in Society: It was contended that the petitioner has deep roots in society and is a permanent resident of Vijayanagar, Bengaluru, as detailed in the cause title.
• Procedural Non-Compliance: The defense argued that mandatory recovery procedures contemplated under the NDPS Act were not adhered to during the search operations.
• Quantity Threshold: The applicant claimed that the contraband seized directly from his possession fell below the commercial quantity threshold.
• Absence of Capital Offence: It was highlighted that while the alleged offence is non-bailable, it carries neither death nor life imprisonment penalties.
• Undertaking and Sureties: The applicant expressed full willingness to abide by any conditions imposed by the court and offered substantial sureties to ensure his presence during trial.

Objections by the Prosecution

The State, represented by the learned Public Prosecutor, vehemently opposed the grant of bail through detailed written objections and oral arguments, emphasizing the following:

• Seizure of Commercial Quantity: The investigating agency seized a total quantity of 20 kg 400 grams of ganja at the instance of Accused No. 1, which firmly crosses the threshold for a commercial quantity.
• Severity of Statutory Penalty: The offence carries a mandatory term of rigorous imprisonment ranging from a minimum of 10 years up to 20 years, along with a mandatory fine.
• Ongoing Investigation: The prosecution submitted that the investigation was still active and pending, making pre-trial release risky.
• Habitual Offending and Public Harm: The State categorized the petitioner as a drug peddler whose activities target younger generations, causing severe societal harm.
• Flight and Tampering Risk: The prosecution expressed strong apprehension that if enlarged on bail, the petitioner would abscond, evade trial, and tamper with prosecution witnesses or evidence.

Statutory Thresholds and Categorization of Contraband

The court examined the quantitative classification governed by Ministry of Finance (Department of Revenue) Notification S.O.1055(E) dated October 19, 2001, issued under the NDPS Act. Entry No. 55 of the Notification specifies the thresholds for Cannabis (Ganja):

• Small Quantity: Up to 1,000 grams (1 kilogram).
• Commercial Quantity: 20 kilograms and above.

Analyzing the seizure timeline, Judge Smt. B.S. Jayashree noted that while the initial recovery from the autorickshaw on August 22, 2022, yielded 5 kg 125 grams, the subsequent disclosure-based search on August 23, 2022, produced an additional 15 kg 275 grams from the petitioner’s residence. The combined weight of 20 kg 400 grams exceeds the 20 kg statutory line, explicitly bringing the case within the ambit of a commercial quantity.

Legal Analysis and Judicial Rulings Cited

In addressing the applicability of Section 37 of the NDPS Act—which governs bail for commercial quantity offences—the court highlighted that statutory restrictions operate as a legal bar where negation of bail is the rule and its grant is a rare exception. Section 37(1)(b)(ii) mandates that no court shall grant bail unless it is affirmatively satisfied that:

1. There exist reasonable grounds for believing that the accused is not guilty of the alleged offence.
2. The accused is not likely to commit any offence while on bail.

To explain the legal requirements, the court analyzed key precedents from the Supreme Court of India:

Union of India v. Mohammed Nawaz Khan (2021)

The Special Court relied on Union of India v. Mohammed Nawaz Khan (Criminal Appeal No. 1043 of 2021, decided on September 22, 2021). In that judgment, the Supreme Court set aside a High Court decision granting bail, emphasizing that procedural challenges—such as search mechanics under Section 42—are questions of fact to be decided during trial rather than grounds to bypass Section 37. Reaffirming Union of India v. Rattan Mallik, the Apex Court noted that a finding on physical possession alone does not absolve the court from applying the strict scrutiny required under Section 37(1)(b)(ii).

State of Kerala v. Rajesh (2020)

Citing State of Kerala v. Rajesh [(2020) 12 SCC 122], the court underscored that the expression “reasonable grounds” means something more than a mere prima facie case. It contemplates substantial probable cause for believing that the accused is not guilty. The Supreme Court cautioned against adopting a liberal approach to bail in NDPS matters, holding that statutory limitations under Section 37 apply in addition to the restrictions under the Cr.P.C.

State of M.P. v. Kajad (2001) and Babua v. State of Orissa (2001)

The court further cited State of M.P. v. Kajad [(2001) 7 SCC 673] and Babua v. State of Orissa [(2001) 2 SCC 566]. In Babua, the Apex Court established that individual liberty must be balanced against the societal interest of curbing drug trafficking. Given the lethal impact of narcotics on society, keeping accused individuals in custody during trial remains necessary when commercial quantities are recovered and prima facie evidence of involvement exists.

Judicial Findings of the Court

Applying these settled principles, Judge Smt. B.S. Jayashree observed that the petitioner was found in conscious possession of a commercial quantity of ganja. The recovery of 15 kg 275 grams directly from the petitioner’s house following his voluntary statement provided strong prima facie material linking him to illegal drug trafficking.

The court noted that the defense failed to present any credible material at this stage to establish that the petitioner was unlinked to the seized contraband or that the recovery was fabricated. Consequently, the court held that the mandatory conditions under Section 37(1)(b) were not met, preventing the grant of bail.

Answering Point No. 1 in the negative, the court formally rejected the bail application.

Final Order of the Court

The formal operational order dictated, typed, corrected, and pronounced in Open Court on December 20, 2022, reads as follows:

Plaintext

ORDER

The petition filed by the petitioner U/Sec.439 of Cr.P.C is hereby rejected.

(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.

The court’s decision clarifies that the grant or rejection of bail at the pre-trial stage is based on prima facie assessment and statutory mandates, and does not constitute a final judicial determination on the guilt or innocence of the accused, which remains subject to full trial proceedings.