Bail Granted to Accused in Drug Trafficking Case Citing Quantity Below Commercial Threshold

In a significant ruling concerning the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, granted bail to an accused, Adarsh, who was arrested with four grams of MDMA. The court, presided over by Smt. B.S. Jayashree, allowed the bail application (Crl.Misc.No.7937/2023) on August 23, 2023, primarily on the ground that the seized quantity falls under the intermediate quantity category, thereby neutralizing the strict limitations imposed by Section 37 of the NDPS Act.

Case Background and Charges

The petitioner, Adarsh (Accused No. 1), a 23-year-old resident of Kannur District, Kerala, was arrested and implicated in Cr.No.336/2023 registered by the Parappana Agrahara Police Station (PS).

The case was initiated based on a complaint filed by the Police Sub-Inspector (PSI) of the Parappana Agrahara PS. The gist of the allegation is that on August 1, 2023, at around 1:00 PM, the complainant received credible information that a person was selling contraband near Dayananda Sagara College, Kudlu Gate, Bengaluru.

Acting on this tip, the PSI informed a superior officer, obtained permission, and conducted a raid with panchas (witnesses) and staff. They apprehended two individuals at the spot, identified as Adarsh (Accused No. 1) and Azad (Accused No. 2), both hailing from Kerala. A search was conducted in the presence of a Gazetted Officer. Upon searching Adarsh (Accused No. 1), the police seized four grams of MDMA. Accused No. 2 was found with no contraband. A detailed mahazar (seizure memo) was prepared, and the MDMA was seized. The accused were arrested, produced before the court, and remanded to judicial custody.

The case was registered under the provisions of Section 21A and Section 22(A) of the NDPS Act, which deal with the punishment for contravention in relation to psychotropic substances where the quantity involved is less than a small quantity or involves a small quantity, respectively. However, the subsequent analysis of the seized quantity played a crucial role in the bail decision.

Arguments Presented by the Defense

The petitioner, represented by Advocate Sri B. Venugopala, sought regular bail under Section 439 of the Cr.P.C., asserting several grounds:

• False Implication: The petitioner claimed innocence, arguing he was falsely implicated and was unaware of the seized drug.
• Procedural Non-Compliance: It was contended that the mandatory procedures contemplated under the NDPS Act for search and seizure were not followed by the investigating agency.
• Intermediate Quantity: Crucially, the defense argued that the quantity seized (4 grams of MDMA) did not constitute a commercial quantity.
• Non-Attraction of Strict Provisions: Since the quantity was not commercial, the defense argued that the stringent conditions for bail under Section 37 of the NDPS Act would not be applicable, allowing the court to consider the application under normal bail jurisprudence.
• Willingness to Cooperate: The petitioner, a permanent resident of the address provided, expressed readiness to abide by any conditions the court might impose, including furnishing surety for his appearance.

Prosecution’s Opposition and Grounds for Rejection

The prosecution, represented by the Public Prosecutor, strongly opposed the bail plea, citing the seriousness and impact of the offence:

• Heinous Offence: The prosecution labeled the offence as heinous, noting that four grams of MDMA were seized from the petitioner’s custody.
• Severe Punishment: They highlighted that the relevant offences are punishable with rigorous imprisonment for a term of not less than 10 years and which may extend to 20 years, along with a fine.
• Public Harm: A specific plea was made that the petitioner was allegedly selling drugs to the younger generation, which could ruin their careers, justifying the rejection of bail.
• Risk of Tampering: The prosecution expressed apprehension that if released, the petitioner might tamper with the prosecution witnesses or involve himself in similar offences.

The Court’s Reasoning and Judicial Analysis

The Special Judge meticulously analyzed the rival contentions and the prosecution papers, focusing primarily on the quantity of the contraband seized.

1. Intermediate Quantity Classification: The court referenced the Ministry of Finance, Department of Revenue Notification S.O.1055(E) dated 19.10.2001, which specifies the threshold quantities for narcotic drugs. The notification states that for MDMA:
   • Small Quantity is 0.5 grams.
   • Commercial Quantity is 10 grams.The court therefore concluded that the seized 4 grams of MDMA falls within the intermediate quantity range.
2. Non-Attraction of Section 37: The order emphasized that since the seized amount is an intermediate quantity and less than the commercial quantity, the rigors of Section 37 of the NDPS Act will not attract. Section 37 imposes strict limitations, requiring the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and is unlikely to commit any offence while on bail, before granting bail. The court noted that when Section 37 is inapplicable, the factors governing the bail petition become similar to those under regular statutes.
3. Reliance on Apex Court Precedent: The court cited the Hon’ble Apex Court decision in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), which held that bail should be considered when the quantity involved is non-commercial. The Special Judge deemed this case law directly applicable to the matter at hand.
4. Completed Investigation and Personal Liberty: The court observed that the major portion of the investigation had already been concluded and further custodial interrogation was not warranted. Since the offence is not punishable with death or life imprisonment, and the petitioner has a permanent residence, the court found that the prosecution’s apprehension of absconding or tampering could be compensated by imposing stringent conditions.

Final Order and Bail Conditions

Based on these findings, the court answered the point for consideration in the affirmative and allowed the petition.

The petitioner, Adarsh, was ordered to be enlarged on bail upon executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh Only) with two sureties for the like sum.

The bail was granted subject to the following stringent conditions:

1. The petitioner shall give attendance before the concerned Investigating Officer (I.O.) once in a month, preferably on the first Monday of every month between 10:00 AM and 2:00 PM, until the filing of the charge sheet or further orders, whichever is earlier.
2. He shall not leave the jurisdiction of the court without prior permission.
3. He shall not tamper with the witnesses or abscond.
4. He shall co-operate with the I.O. for investigation.
5. He shall not commit a similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and local address proof document before the court and the photo ID proofs of his sureties.
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions would entail the cancellation of bail.