The Court of the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru, presided over by Smt. B.S. Jayashree, allowed the bail application filed by Krishna Kumar Mahatho (Accused No. 1) under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The petitioner had been arrested and remanded in connection with Crime No. 159/2022 registered by the Adugodi Police Station for offences punishable under Section 22(B)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Background and Allegations of the Prosecution

The criminal proceedings were initiated by the Police Sub-Inspector (PSI) of Adugodi Police Station. According to the prosecution, on July 29, 2022, at around 6:00 PM, while conducting patrolling duty near Kempegowda Samudaya Bhavana, police personnel noticed an individual carrying a bag who attempted to flee upon sighting the police team.

The police team chased and intercepted the suspect, who disclosed his identity as Krishna Kumar Mahatho, aged 27 years, residing in Marathahalli, Bengaluru, with a permanent residence in Madhubani District, Bihar. Upon enquiry, the suspect revealed that his bag contained ganja.

Independent panchas were summoned to the scene. The petitioner stated that he was not carrying any contraband on his person, so a personal search was not conducted. A search of the bag revealed plant leaves, flowers, seeds, and stems emitting a strong odor of ganja. The contraband was weighed using an electronic scale and measured 2 kilograms and 200 grams. The police seized the article under a spot mahazar, arrested the accused, and registered Crime No. 159/2022 based on the PSI’s detailed report.

Submissions of the Parties

Advocate Sri Noorpasha, representing petitioner Krishna Kumar Mahatho, submitted before the Special Court that the petitioner was innocent, law-abiding, and falsely implicated by the police. Counsel argued that mandatory procedural requirements under Sections 41, 42, 47, 50, and 52 of the NDPS Act were not complied with during the search and recovery. It was further contended that the seized quantity was non-commercial, the alleged offence did not attract capital punishment or life imprisonment, major portions of the investigation were complete, and the petitioner, who had no prior criminal antecedents, was willing to abide by any conditions imposed by the court.

The Public Prosecutor strongly opposed the bail application, highlighting that 2 kilograms and 200 grams of ganja were recovered from the direct possession of the accused. The prosecution argued that the offence was punishable with rigorous imprisonment for up to 20 years along with a fine. The State contended that there existed a strong prima facie case against the petitioner, alleging he was a habitual drug dealer who might abscond or tamper with prosecution evidence if released on bail.

Legal Analysis and Judicial Reasoning

The Special Court framed the central point for determination as whether the petitioner had established sufficient grounds to be enlarged on bail under Section 439 of Cr.P.C.

Evaluating the nature and quantity of the contraband, the Court referred to Notification S.O.1055(E) dated October 19, 2001, issued by the Ministry of Finance (Department of Revenue). As per Entry No. 55 of the schedule, up to 1,000 grams (1 kg) of ganja is categorized as a small quantity, whereas 20 kilograms or more constitutes a commercial quantity. Consequently, the Court held that the recovery of 2 kilograms and 200 grams of ganja falls within the intermediate quantity threshold.

The Special Court placed reliance on the precedent set by the Supreme Court of India in Birbal Prasad v. State of Bihar (2018 11 SCC 488), wherein the Apex Court granted bail to an accused involved in a seizure of 14 kilograms of ganja on the ground that it represented a non-commercial quantity and the accused had no prior criminal antecedents.

Applying this ratio, the Special Judge observed that when the quantity of seized contraband is less than commercial, the strict statutory bar against bail under Section 37 of the NDPS Act does not apply. In intermediate quantity cases, bail considerations align with regular statutory principles under general criminal law unless exceptional circumstances are established by the prosecution.

The Court noted that the incriminatory article had already been seized, the petitioner’s voluntary statement was recorded, and further custodial interrogation was no longer required. The Court held that prosecution concerns regarding potential absconding or trial delay could be compensated by imposing strict conditions.

Final Order and Conditions Imposed

The Special Court allowed Miscellaneous Criminal Petition No. 7686/2022 and ordered the release of Krishna Kumar Mahatho on bail upon executing a personal bond for Rs. 1,00,000/- with two sureties for the like sum, subject to the following conditions:

1. The petitioner shall report 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.
2. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall not tamper with prosecution witnesses or abscond.
4. He shall fully cooperate with the Investigating Officer during the investigation.
5. He shall not commit similar offences or any other offence while on bail.
6. He shall furnish his photo identity proof and local address proof documents before the Court, along with photo identity proof of his sureties.
7. He shall appear before the Court on all hearing dates.
8. Any breach of these conditions shall entail cancellation of bail.