Mumbai, Maharashtra – A Special Judge for Narcotic Drugs and Psychotropic Substances (NDPS) Act cases in Greater Mumbai has granted bail to Michael Ogbnna Kaousi, a 22-year-old foreign national, who was arrested in September 2018 for alleged cocaine possession. The order, issued by Special Judge U. M. Mudholkar on December 15, 2018, hinged on the court’s finding that the quantity of cocaine seized from Kaousi individually was a “non-commercial quantity,” thus not attracting the stringent bar on bail under Section 37 of the NDPS Act.

Kaousi, with no reported occupation and residing in Malad (West), Mumbai, was arrested by officers of Malwani police station on September 4, 2018. He was charged under Sections 8(c) read with 21 and 29 of the NDPS Act, 1985, relating to the possession and conspiracy concerning narcotic drugs.

The prosecution’s case stated that during a raid on September 4, 2018, Kaousi and his associates were found possessing a total of 152 grams of cocaine. However, it was specifically noted that Kaousi individually was found with 20 grams of cocaine.

Ld. Advocate Mr. V. P. Shinde, representing Kaousi, argued that the 20 grams seized from his client falls under the category of non-commercial quantity, which exempts him from the strict provisions of Section 37 of the NDPS Act. He further contended that Kaousi was falsely implicated, had no criminal antecedents, and was prepared to surrender his passport and abide by any conditions imposed by the court to ensure he would not abscond. The defense also pointed out that the investigation was complete, and therefore, continued judicial custody was unwarranted.

APP Mr. Panjwani, representing the State, opposed the bail, arguing that the contraband was seized following due process. He expressed concerns that being a foreign national, Kaousi might abscond if released on bail, or might indulge in similar illegal activities.

Judge Mudholkar meticulously reviewed the submissions and the case records. The court acknowledged that the 20 grams of cocaine found in Kaousi’s individual possession was “undoubtedly non-commercial quantity,” thus affirming that “the bar under section 37 of the NDPS Act does not get attracted.”

A critical point of discussion was the total quantity of cocaine seized (152 grams), which is a commercial quantity. However, the Judge applied the principle from the Supreme Court judgment in Amarsingh Ramjibhai Barot V/s. State of Gujarat (2006), which held that if two accused persons are found with more than a commercial quantity jointly, but individually less than commercial quantity, Section 29 (conspiracy) is not attracted unless there is material to indicate a conspiracy. In Kaousi’s case, the court found “no material to indicate that there was conspiracy between the present applicant and the co-accused and therefore, the total quantity of the contraband cannot be looked into.”

Further, the court observed that Kaousi had been in custody since his arrest on September 4, 2018, and the chargesheet had already been filed. Given that the majority of witnesses are police officers, the likelihood of tampering with evidence was deemed minimal. With no further recovery or discovery required from the applicant, and considering that the trial would take a considerable amount of time, his continued detention was deemed “unwarranted.” The court also noted the absence of any allegations or evidence regarding Kaousi’s criminal antecedents.

Based on these considerations, Special Judge Mudholkar concluded that the bail application deserved to be allowed, with stringent conditions to secure the prosecution’s interest:

• Bail Bond: Michael Ogbnna Kaousi is to be released on executing a Personal Recognizance (P.R.) Bond of ₹1,00,000/- (Rupees One Lakh only), with one or two sureties in the like amount.
• No Tampering: He shall not directly or indirectly dissuade any prosecution witnesses from deposing or tamper with prosecution evidence.
• Passport Surrender: Before release, the applicant must surrender his passport with the Registrar (Sessions) of the Court.
• Address Proof: He must also file documentary proof of his present place of residence with the court.

The bail application was disposed of accordingly, providing a significant relief to the foreign national accused in the drug case.