In a significant judicial order delivered by the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru, the court rejected the bail application filed by Selvaraju (Accused No. 1) in Crl.Misc.No.7017/2022 (also referenced in internal case headings as Crl.Misc.6671/2022). The case, registered by the Kalasipalya Police Station under Crime No. 100/2022, involves the alleged possession and attempted sale of 20.575 kilograms of ganja, an offence punishable under Section 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985. The ruling highlights the strict statutory mandate under Section 37 of the NDPS Act when dealing with commercial quantities of narcotic substances and reinforces the principle that pre-trial release in such cases is an exception rather than the rule.

Case Background and Prosecution Allegations

The criminal law was set in motion on June 27, 2022, when the complainant police officer attached to the Kalasipalya Police Station received credible information at around 9:05 AM. The information indicated that an individual was actively engaged in selling ganja to the public in front of Tippu Armoury under a Peepal Tree at Patnool Town, F Street, within the jurisdictional limits of the Kalasipalya Police Station.

After recording the information, the complainant officer notified his superior officer, obtained necessary written permission, and assembled a raiding team comprising police personnel, independent panchas (witnesses), and standard investigation tools. The team reached the spot at approximately 9:35 AM and mounted surveillance. The team observed a person moving suspiciously at the location. Police personnel surrounded and apprehended the suspect, who identified himself as Selvaraju, aged 32 years, residing at No. 10 B Big Streets, Nayakanapet, Kanchipuram District, Tamil Nadu.

Upon questioning, the accused was found to be carrying plastic packets containing ganja inside a bag. In the presence of a Gazetted Officer, a personal search and bag inspection were conducted. The search yielded a total of 20 kilograms and 575 grams of ganja. The police seized the entire contraband under a detailed spot mahazar (seizure panchanama). Following the recovery, the officer prepared a detailed report and submitted it to the Station House Officer (SHO), forming the basis for registering Crime No. 100/2022 under Section 20(b)(ii)(C) of the NDPS Act. The petitioner was formally arrested on June 27, 2022, produced before the jurisdictional Magistrate, and remanded to judicial custody.

Submissions by the Defense

Represented by advocate Sri M.N., the petitioner filed a petition under Section 439 of the Code of Criminal Procedure (Cr.P.C.) seeking regular bail. The primary grounds urged in support of the bail application were:

• Innocence and False Implication: The petitioner asserted that he was innocent, a law-abiding citizen, and had been falsely implicated in the case by the respondent police.
• Lack of Knowledge and Planting: The defense argued that the petitioner was planted in the case by the complainant police, was completely unaware of the alleged seized drug, and had not committed any offence.
• Procedural Non-Compliance: It was submitted that mandatory statutory procedures contemplated under the NDPS Act regarding search, recovery, and seizure were not adhered to during the operation.
• Non-Applicability of Statutory Bar: The defense contended that the seized article did not constitute a commercial quantity, and therefore, the stringent restrictions under Section 37 of the NDPS Act were not applicable.
• Residence and Assurance: The petitioner highlighted that he is a permanent resident at the address shown in the cause title, is ready to offer reliable sureties for his due appearance, and is willing to abide by any conditions imposed by the court.

Objections Raised by the Prosecution

The prosecution, represented by the learned Public Prosecutor, strongly opposed the bail plea by filing formal objections based on the following contentions:

• Direct Seizure of Commercial Contraband: Investigating authorities seized 20 kg 575 grams of ganja directly from the physical custody and possession of the petitioner under a spot mahazar.
• Commercial Quantity Classification: Under the relevant statutory notifications, the quantity seized exceeds the threshold for commercial quantity, triggering severe penal provisions.
• Severity of Punishment: The offence alleged against the petitioner carries rigorous imprisonment for a term that may extend up to 20 years along with a heavy fine.
• Habitual Offending and Flight Risk: The prosecution alleged that the petitioner is a habitual drug dealer. Given that he is a resident of Tamil Nadu, the prosecution expressed strong apprehensions that if enlarged on bail, he would abscond, fail to face trial, hamper the ongoing investigation, and tamper with prosecution evidence.
• Societal Impact: The prosecution emphasized that drug peddling and illicit trafficking severely harm society and ruin the careers of the younger generation.

Judicial Findings and Detailed Legal Analysis

The presiding judge, Smt. B.S. Jayashree, evaluated the prosecution records, statutory provisions, and arguments from both sides before addressing the central point for consideration: whether the petitioner had made out sufficient grounds to be enlarged on bail.

Classification of Contraband Quantity

The court analyzed the seizure papers in conjunction with Notification S.O.1055(E) dated October 19, 2001, issued by the Ministry of Finance, Department of Revenue, Government of India. Under Entry Sl. No. 55 of the Notification:

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

The court noted that the seizure panchanama recorded a total recovery of 20 kilograms and 575 grams of ganja from the petitioner’s possession. Because the weight exceeded 20 kilograms, the court rejected the defense submission and firmly categorized the seized contraband as a commercial quantity.

Mandatory Conditions Under Section 37 of the NDPS Act

Because the case involved a commercial quantity of contraband, the court emphasized that the consideration of bail is strictly governed by Section 37(1)(b) of the NDPS Act. Section 37 mandates that no person accused of an offence involving a commercial quantity shall be released on bail unless the court is satisfied that:

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

The court reiterated that these twin conditions are in addition to the standard limitations under the Code of Criminal Procedure, establishing that for commercial quantity offences under the NDPS Act, negation of bail is the rule and grant of bail is an exception.

Precedents Cited and Evaluated by the Court

To support its interpretation of the statutory bar under Section 37, the court relied on landmark judgments of the Supreme Court of India:

• Union of India v. Mohammed Nawaz Khan (Crl. Appeal No. 1043/2021, dated September 22, 2021): The Supreme Court set aside a High Court order granting bail, observing that courts are required to apply strict scrutiny under Section 37(1)(b)(ii). The Apex Court noted that procedural arguments, such as technical non-compliance under Section 42 or absence of personal body recovery when contraband is found in joint vehicle possession, are questions of fact to be determined during trial and do not automatically absolve the court from applying Section 37 scrutiny.
• State of Kerala v. Rajesh ((2020) 12 SCC 122): The Supreme Court clarified that the expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable cause for believing that the accused is not guilty. The Apex Court held that a liberal approach in grant of bail under the NDPS Act is uncalled for, given the underlying object of Section 37.
• State of M.P. v. Kajad ((2001) 7 SCC 673): The Supreme Court held that negation of bail is the rule and its grant an exception under Section 37(1)(b)(ii). The conditions specified under Section 37 are cumulative and additional to limitations under the Cr.P.C.
• Babua v. State of Orissa ((2001) 2 SCC 566): The Supreme Court ruled that unless the court is satisfied that the accused is not guilty and unlikely to reoffend, bail cannot be granted. The Court emphasized that the individual liberty of a citizen must be balanced against the interest of society, and keeping individuals accused of lethal drug offences behind bars during trial pendency is necessary in the public interest.

Applying these settled legal principles, Judge B.S. Jayashree observed that 20 kg 575 grams of ganja was seized directly from the petitioner at the spot in the presence of independent witnesses and a Gazetted Officer. The prosecution papers presented strong prima facie material establishing conscious possession of a commercial quantity of narcotic drugs. At this stage of the proceedings, the court found no reasonable grounds to believe that the petitioner was not guilty of the offence or that he would not engage in similar criminal activities if released on bail.

Final Decision and Order

Evaluating the gravity of the allegations, the commercial quantity of the contraband, the statutory bar under Section 37 of the NDPS Act, and the risk of flight given the petitioner’s out-of-state residence, the court answered Point No. 1 in the Negative.

The court explicitly noted that the grant or rejection of bail at this stage is based on prima facie materials on record and does not amount to a final determination of guilt or innocence, which remains a matter for full-fledged trial.

Pronounced in Open Court on July 27, 2022, the final order reads as follows:

ORDER

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