The Andhra Pradesh High Court has affirmed that possession of a non-commercial quantity of ganja, coupled with prolonged judicial custody and absence of prior criminal record, warrants the grant of regular bail under Section 439 CrPC. This ruling reinforces the principle that bail is the rule and jail the exception, even in cases under the stringent NDPS Act, provided the statutory thresholds for denial are not met.
Background & Facts
The Dispute
Criminal Case No. 28 of 2026, registered at Ongole I Town Urban Police Station, Prakasam District, pertains to alleged offences under Section 8(c) read with Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioners, Bandi Lokesh and Ganta Kasi Viswanatham, were arrested on 10.03.2026 following a raid at Shadi Khana, near the Vegetable Market in Ongole.
Key Facts
- On 10.03.2026 at approximately 18:30 hours, police, accompanied by mediators, conducted a raid based on intelligence regarding illegal possession and transportation of ganja.
- The petitioners were found at the location and admitted to purchasing ganja from unidentified individuals in Barampuram, Odisha, for resale.
- Police seized 1.8 kg of ganja, two motorcycles, and 19 cell phones under a mediators’ report.
- The petitioners also reportedly admitted to stealing cell phones, though no separate FIR was filed for theft.
- Both petitioners have been in judicial custody since 10.03.2026.
- The contraband quantity of 1.8 kg of ganja was assessed by the court as non-commercial in nature.
- No prior criminal history was indicated for either accused.
- The investigation remains pending as of the date of the order.
Procedural History
- 10.03.2026: Arrest of petitioners following raid and seizure of contraband.
- 10.03.2026: Detention in judicial custody commenced.
- 06.05.2026: Criminal Petition No. 4051/2026 filed before the Andhra Pradesh High Court seeking regular bail under Sections 437, 438, 439 CrPC and Section 528 BNSS.
- 06.05.2026: Hearing conducted before Dr. Justice Venkata Jyothirmai Pratapa.
Relief Sought
The petitioners sought release on regular bail, arguing that the quantity of ganja was non-commercial, they had been in custody for over 55 days, and their continued incarceration would cause undue hardship to their families. They undertook to comply with all bail conditions.
The Legal Issue
The central question was whether the possession of 1.8 kg of ganja, classified as a non-commercial quantity under the NDPS Act, coupled with prolonged judicial custody and absence of aggravating factors, justifies the denial of regular bail under Section 439 CrPC.
Arguments Presented
For the Petitioner/Accused
Counsel for the petitioners submitted that the quantity of ganja seized - 1.8 kg - falls below the threshold for commercial quantity as defined under the NDPS Act. He emphasized that the petitioners are first-time offenders, have been in custody since 10.03.2026, and are the sole breadwinners of their families. He argued that the prosecution has not demonstrated any risk of evidence tampering or flight, and that the petitioners are willing to comply with stringent bail conditions. He relied on the principle that bail should not be denied merely because the offence is under the NDPS Act, citing State of Punjab v. Baldev Singh and Kunhi Mohd. v. State of Kerala.
For the Respondent/State
The Assistant Public Prosecutor acknowledged that the quantity of ganja was non-commercial and that the petitioners had been in custody since 10.03.2026. She did not oppose bail outright but submitted that the investigation was still ongoing and that the Court should exercise discretion while imposing strict conditions. She did not raise any specific objection to the petitioners’ character or likelihood of absconding.
The Court's Analysis
The Court undertook a careful review of the nature and quantity of the contraband, the duration of custody, and the absence of any allegation of violence or organized trafficking. It noted that 1.8 kg of ganja, while illegal, does not meet the statutory definition of commercial quantity under the NDPS Act, which typically begins at 20 kg for ganja under Schedule I. The Court emphasized that the Act does not mandate automatic denial of bail for non-commercial quantities.
"The fact that the quantity of ganja seized is 1.8 kg, which is well below the threshold for commercial quantity, and that the petitioners have been in custody for over 55 days, weighs heavily in favour of granting bail."
The Court further observed that the petitioners have not been accused of any violent or organized crime, and there is no material suggesting they are likely to tamper with evidence or influence witnesses. The Court rejected the notion that the mere pendency of investigation is sufficient to deny bail, particularly when the accused has been in custody for a significant period and the offence does not involve large-scale trafficking.
The Court also noted the petitioners’ willingness to comply with conditions and their status as primary earners for their families. It held that the interests of justice and the presumption of innocence under Article 21 of the Constitution require that bail be granted where the statutory grounds for denial are absent.
The Verdict
The petitioners succeeded. The High Court granted regular bail to both accused persons, subject to the following conditions: (i) execution of personal bonds of Rs. 20,000 each with two sureties of like amount; (ii) weekly reporting to the Station House Officer every Sunday between 10:00 a.m. and 5:00 p.m.; (iii) no tampering with evidence or intimidation of witnesses; (iv) surrender of passports or submission of an affidavit stating non-possession; (v) no commission of any future offence; and (vi) appearance before the Investigating Officer as required. The Court directed compliance within seven days and warned that violation of any condition would lead to cancellation of bail.
What This Means For Similar Cases
Non-Commercial Quantity Triggers Bail Presumption
- Practitioners must argue that quantities below statutory commercial thresholds (e.g., 1.8 kg ganja) do not justify automatic denial of bail under the NDPS Act.
- Courts are increasingly recognizing that prolonged custody without trial, even in drug cases, must be balanced against the right to liberty.
- The burden shifts to the prosecution to demonstrate specific risks of flight or evidence tampering - not mere suspicion.
Bail Conditions Must Be Tailored, Not Standardized
- The Court’s conditions reflect a calibrated approach: weekly reporting, bond amounts proportionate to means, and passport surrender without blanket imposition.
- Lawyers should propose specific, enforceable conditions rather than generic assurances.
- Affidavits on passport possession are now a recognized alternative to physical surrender.
Investigation Pendency Alone Is Insufficient to Deny Bail
- The mere fact that an investigation is ongoing cannot be the sole ground to refuse bail under Section 439 CrPC.
- This judgment reinforces Sanjay Chandra v. CBI and Rajesh Sharma v. State of U.P. by affirming that bail is not contingent on the completion of investigation.
- Practitioners should cite this case when opposing prolonged pre-trial detention in NDPS cases involving small quantities.
