Gopalakrishnan vs State Represented By The Inspector Of Police

The petitioner, who was arrested and remanded to judicial custody on 09.08.2025 for the alleged offences punishable under Sections 8(c) read with Section 20(b)(ii)© of NDPS Act in C.C.NO.215 of 2026 on the file of the Learned II Additional Special Judge for NDPS Act Cases at Chennai, seeks regular bail in connection with Crime NO. 446 of 2025.

The case of the prosecution is that the petitioner was found in possession of 21.090 kgs of Ganja in his shoulder bag. Hence, the complaint.

The quantity alleged, 21.090 kilograms, exceeds the commercial quantity by 1.090 kilogram. If it is a commercial quantity, the offence is punishable with rigorous imprisonment for not less than ten years, which may extend to twenty years, and Section 37 of the Act governs the petition.

Learned counsel for the petitioner submits that the report of the laboratory shows that the seized material contained leaves, leaf stalks and seeds; that these were weighed with the flowering tops; and that, if the parts which the definition in Section 2(iii)(b) of the Act does not take in are left out, the ganja would fall below the commercial quantity. He relies on Kunal Dattu Kadu v. Union of India, 2022 SCC OnLine Bom 1770 and on Rajesh Sahu v. State of Chhattisgarh, order of the Supreme Court dated 01.09.2025. He further submits that the arrest intimation was only a printed proforma, in breach of Article 22(1) of the Constitution; that the option offered to the petitioner under Section 50 of the Act included a third option not known to law, relying on State of Punjab v. Baldev Singh, (1999) 6 SCC 172 and State of Himachal Pradesh v. Surat Singh, 2026 SCC OnLine SC 376; that no application under Section 52A(2) was made, that the samples were not forwarded within the time __________ stipulated by Rule 14 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022, relying on Rambabu v. State of Rajasthan, order of the Supreme Court dated 13.08.2025 in SLP (Crl.) No.5648 of 2025; and that the seizure was not video recorded. The definition of ganja and Rule 14 are said to be new grounds.

Learned Government Advocate (Criminal Side), on the basis of counter affidavit of Inspector of Police, opposed the petition. The counter affidavit states that about 21.090 kilograms of ganja, a commercial quantity, was recovered; that Kunal Dattu Kadu (cited supra) and Rajesh Sahu (cited supra) turned on their own facts; and, in paragraph 13, that the petitioner has not demonstrated from the prosecution records that the entire alleged quantity of 21 kilograms consists only of excluded seeds/leaves/stalks. It answers the remaining grounds by saying that Section 50 does not apply to the search of a bag, that no prejudice from the form of the arrest intimation has been shown, and that delay in compliance with Section 52A and the Rules does not satisfy Section 37. Reliance is placed on Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, State of Kerala v. Rajesh, (2020) 12 SCC 122 and Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18 SCC 374.

I have considered the rival submissions and perused the material placed before me.

Ganja is defined by Section 2(iii)(b) of the Act as the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops). The bar in Section 37(1)(b)(ii) is attracted only where the offence involves a commercial quantity. It is for the prosecution, which invokes the bar, to place before the Court the material from which it can be seen that the threshold has been crossed. On the parts of the plant, a learned Judge of this Court in Ganesan v. The Deputy Superintendent of Police, Crl.A.(MD)No.212 of 2020 and batch, dated 15.10.2025, held that

I have applied that decision in Crl.O.P.No.17678 of 2026, dated 28.08.2026, where the report described the sample from a seizure of 21.5 kilograms in much the same terms, and in Crl.O.P.No.24478 of 2026, where the sample from a seizure of 21 kilograms contained leaf stalks. In Rajesh Sahu (cited supra), the Supreme Court granted bail where the seized quantity was a little above the commercial quantity and was found to contain leaves, seeds and dry vegetative floral parts, which, it observed, needed to be excluded while computing the actual quantity of ganja.

This case falls within the band Ganesan (cited supra) speaks of. The first information report gives each lot as "21.090 kgs of dry ganja, weighed in bulk at the spot. Nothing on the record shows that how much of the 21.090kilograms consisted of flowering or fruiting tops with their accompanying leaves and seeds. The petitioner does not have to show that the whole of the 21 kilograms consists of excluded parts. The question is whether the ganja, as defined, is shown to exceed 20 kilograms, and on a margin of 1.090 kilogram the respondent's own report leaves that open. I do not hold that the quantity is below the commercial quantity. That is a matter on which evidence will be led, and I leave it entirely to the Special Court. I hold only that there is a real possibility that the ganja, excluding the stalks, is below the commercial quantity. On the material as it stands, I am satisfied that there are reasonable grounds for believing that the petitioner is not guilty of an offence involving a commercial quantity. The counter affidavit does not attribute any previous case to the petitioner, and I am satisfied that he is not likely to commit any offence while on bail.

The other grounds do not need to be decided. The arrest intimation has not been placed before me, the plea on it is stated in a single sentence, and it was available in each of the earlier petitions; I leave it open. Whether Section 50 of the Act was attracted to the search of the two trolley bags, and whether the option offered complied with it, are questions for the trial; Surat Singh (cited supra) was decided in an appeal after a full trial. A lapse or delay in compliance with Section 52A by itself neither vitiates the trial nor entitles the accused to bail, as held in Narcotics Control Bureau v. Kashif, 2024 INSC 1045, and Rambabu (cited supra) is a short order on its own facts. The decision relied on for video recording, as extracted in the petition, turned on directions of the High Court at Calcutta. I rest nothing on any of these points.

The decisions relied on by the respondent state the rigour of Section 37 where it applies. They do not assist where the prosecution's own material does not show that the commercial quantity has been crossed.

The investigation is complete, and the prosecution's material is documentary and in its own hands. The apprehension recorded in the first order, that the petitioner, who hails from Odisha, may abscond, is real, and it is to be met by conditions that fix his address and his attendance, and that allow the Special Court to act on any breach.

The observations in this order are prima facie and are confined to the disposal of this petition. They are not an expression of opinion on the weight or composition of the contraband, or on compliance with Sections 42, 50 and 52A of the Act and the Rules of 2022. The Special Court shall decide every question on the evidence let in before it, uninfluenced by anything stated here.

Accordingly, this Criminal Original Petition is allowed and the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties, out of the two sureties, one shall be a local surety from Tamil Nadu and one from his blood relative, each for a like sum, to the satisfaction of the learned XV Metropolitan Magistrate, George Town, Chennai, in C.C.NO.215 of 2026 , on the following conditions:

[a] the sureties shall affix his photographs and Left Thumb Impression in the Application for Surety ship [Judicial Form No.46 annexed to 'The Criminal Rules of Practice, 2019']. The learned Magistrate shall obtain a copy of any one of the identity proofs to ensure his identity;

[b] the petitioner shall appear before the Special Court on every date of hearing, unless his appearance is dispensed with by that Court.

[c] the petitioner shall not abscond either during investigation or trial;

[d] the petitioner shall not tamper with the evidence or witness either during investigation or trial;

[e] On breach of any of the aforementioned conditions, the learned Magistrate/Trial Court is entitled to pass appropriate orders against the petitioner in accordance with law as if the aforementioned conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)13 SCC 283];

[f] If the accused thereafter absconds, a fresh FIR can be registered under Section 269 of B.N.S.