Bail cannot be granted under the NDPS Act if the possession of a commercial quantity and evidence of conspiracy are established against the accused.

ORDER :

1. The Criminal Petition has been filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.’)/ Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS ’) seeking to enlarge the petitioner Nos.1 and 2/Accused Nos.1 & 2 on bail in Cr.No.176 of 2025 of Government Railway Police Station, Visakhapatnam, registered against the petitioner Nos.1 and 2/Accused Nos.1 & 2 herein for the offences punishable under Section 8(c) read with 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the NDPS Act’).

2. The case of the prosecution is that on 16.05.2025 at 12.05 hours, while the Government Railway Police conducting general check in Visakhapatnam Railway Station, on suspicious circumstances, the petitioners were apprehended while they were in possession of ganja. The police seized 19.5 Kgs of ganja in three packets from the 1^st petitioner and 13 Kgs of ganja in two packets from the 2^nd petitioner under the cover of a mediatornama and registered an FIR. During the investigation, the accused were apprehended and remanded to judicial custody on 16.05.2025.

3. Mr.K.Prudhvi Raju, the learned counsel for the petitioner Nos.1 and 2 contends that the petitioner Nos.1 and 2 are innocent of the alleged offence and have been falsely implicated by the police. It is further submitted that the petitioners undertake to strictly adhere to any conditions that may be imposed by this Court. Learned counsel for the petitioner Nos.1 and 2 further contends that the petitioner Nos.1 and 2 were allegedly carrying 19.5 Kgs and 13.0 Kgs of ganja respectively. If the two quantities are apportioned between the petitioner Nos.1 and 2, they are not carrying the commercial quantity of ganja. Therefore, the rigor under Sections 29 , 36 and 37 of ‘the NDPS Act’ cannot be applied and urged to enlarge the petitioner Nos.1 and 2 on bail.

4. The petitioners were arrested on 16.05.2025 and ever since they have been in judicial custody. Learned counsel further relied on a decision of this Court in Shafik Khan and Others v. State of Andhra Pradesh in Crl. Pet. No. 4326 of 2019 dated 27.08.2019 at Para No.6, wherein the seized ganja was apportioned in between the accused and the petitioners were enlarged on bail as they were not allegedly carrying commercial quantity of contraband.

5. Learned Assistant Public Prosecutor contends that the petitioner Nos.1 and 2 were spot arrested and they were carrying 32.5 Kgs of ganja. The rigor of Section 29 of ‘the NDPS Act’ is squarely applicable to the petitioners. The judgment relied upon by the petitioners in Shafik Khan’s case (supra) may not be applicable to the instant case, as the facts and circumstances are entirely different. Learned Assistant Public Prosecutor further contends that several witnesses are to be examined, co-accused are to be apprehended and main source of the contraband is yet to unearthed and urged to dismiss the bail application.

6. As seen from the record, the petitioner Nos.1 and 2 1 and 2 were allegedly found in possession of 19.5 Kgs and 13 Kgs of ganja respectively. The petitioners were arrested on the spot.

7. A learned Single Judge of this Court in Shafik Khan’s case (supra) observed that each accused therein, in order to have unlawful enrichment, individually purchased 4 Kgs of ganja for selling at higher price and hence apportionment of ganja was considered by not invoking Section 29 of ‘the NDPS Act’.

8. In Crl. Pet. No. 6809 of 2024 dated 22.10.2024 in between Setty Vinaya Kumar & Others v. State of Andhra Pradesh & Another learned Single Judge o