The quantity of seized drugs and the absence of criminal antecedents are crucial factors in determining bail applications under the NDPS Act.

JUDGMENT/ORDER

V Srishananda, J. - Heard Sri Raghunatha Gowda S., learned Counsel for the petitioner and Sri Vishwamurthy, learned High Court Government Pleader for the respondent-State.

2. This petition is filed under Section 439 of Cr.P.C. with the following prayer:

'Wherefore, the above-named petitioner most respectfully prays that this Hon'ble Court be pleased to enlarge the petitioner on bail in Cr.No.290/2022 of Respondent -Marathahalli police for the offence punishable u/s. 20(ii)(B), 22(C), 8(c) of NDPS Act, 1985, pending on the file of XXXIII Addl. City Civil & Sessions Judge at Bengaluru, (CCH: 33), in the interest of justice.'

3. Brief facts of the case are as under:

Police Inspector by name Sri B.S.Ashok, filed a report with Marathahalli Police on 07.12.2022 which was registered in Crime No.290/2022 for the offences punishable under Sections 8(c), 22(C), 20(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

4. The gist of the report reveal that when the complainant was on duty, he received a credible information that somebody is selling the ganja to the prospective customers near Manikanta Bakery, 1st Cross, Manjunatha Layout, Marathahalli, and the same was intimated to the higher police officials and a raid team came to be formed comprising of the complainant, two independent panch witnesses, Gazetted Officer and sub-staff. As per the credible information they proceeded to the spot and caught hold of the petitioner and others. On enquiry with the group of persons, police were able to seize 1 kg 100 gms. of ganja and mobile phones and plastic carry bag. The petitioner was taken to custody and handed over to the Station House Officer along with other accused persons and seized the ganja. The Station House Officer, registered the case and arrested the petitioner and sent him to judicial custody. Thereafter, the petitioner applied for grant of bail which was turned down by the learned District Judge by order dated 11.01.2023 in Crl.Misc.No.12524/2022.

5. Thereafter, the petitioner is before this Court.

6. Learned Counsel for the petitioner Sri Raghunatha Gowda S., vehemently contended that seized ganja is intermediary quantity and therefore, Section 37 of the NDPS is not applicable to the case on hand and the said aspect of the matter is not properly appreciated by the learned trial Judge while rejecting the bail application and sought for allowing the bail petition.

7. Per contra, learned High Court Government Pleader opposes the bail application stating that the seized ganja is to the tune of 1 kg. 100 gms. and therefore, the petitioner is not entitled for grant of bail.

8. He also pointed out that if the petitioner is enlarged on bail, there is every possibility of petitioner repeating the similar offences and may not be available to the trial and may flee away from justice.

9. In view of the rival contentions of the parties, this Court perused the material on record meticulously.

10. Admittedly, the head of the raid party was able to seize the ganja from the custody of the group of persons who had assembled near Manikanta Bakery, 1st Cross, Manjunatha Layout, Marathahalli, to the tune of 1 kg. 100 gms. The head of the raid party was able to seize the mobile phones and plastic cover and other material objects.

11. Since the seized ganja is only to the tune of 1 kg. 100 gms., the same is to be termed as intermediary quantity as it is above the small quantity and less than the commercial quantity.

12. As rightly contended by Sri Raghunatha Gowda S., learned Counsel for the petitioner, only in respect of the commercial quantity, the hindrance as to the exercise of the powers under Section 439 Cr.P.C. as is contemplated under Section 37 of the NDPS Act, would be applicable and since the seized ganja is intermediary quantity, this Court can very well exercise its power under Section 439 Cr.P.C.

13. The petitioner is in custody on and from 12.12.2022 and since the ganja is already seized and in the absence of any crimi