In a significant ruling emphasizing the stringent provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS) at Bengaluru, Smt. B.S. Jayashree, rejected the bail application of an accused involved in a commercial quantity drug seizure. The order, passed on January 11, 2023, underscores the judiciary’s strict adherence to Section 37 of the NDPS Act, particularly concerning offenses involving commercial quantities of contraband.

The petitioner, Adesh Jaiswal (accused No. 3), aged 21, was arrested and booked under Crime No. 290/2022 by the Marathahalli Police Station for offenses punishable under Sections 20(ii)(b), 22(c), and 8(c) of the NDPS Act. The application for bail was filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.).

The prosecution’s case stems from a raid conducted on December 7, 2022, following credible information that individuals were selling prohibited substances, specifically ganja and MDMA, at Manikanta Bakery, Marathahalli. The complainant, a Police Sub-Inspector (PSI), along with staff, apprehended three individuals, including the petitioner. During the subsequent search, the authorities allegedly seized 2 kilograms and 300 grams of ganja and 11 grams of MDMA. Accused No. 3, Adesh Jaiswal, was specifically found in possession of 1 kilogram and 100 grams of ganja. The accused were arrested, and the contraband was seized under a detailed mahazar.

In his plea, the petitioner’s counsel vehemently argued that the accused was innocent and falsely implicated. Key arguments for bail included: the alleged seizure of ganja (1 Kg, 100 gms) being an intermediate quantity; the alleged failure of the Investigating Officer (I.O.) to follow the mandatory search and seizure procedures under the NDPS Act; the fact that major portion of the investigation was concluded, making custodial interrogation unnecessary; and the contention that the petitioner is the sole bread earner of his family.

The prosecution, represented by the Public Prosecutor, strongly opposed the bail petition. They highlighted that the total seizure included 11 grams of MDMA, which, according to the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated October 19, 2001, is a commercial quantity (the commercial quantity threshold being 10 grams). Since the offense involves a commercial quantity, the punishment is rigorous imprisonment for a term of not less than 10 years and up to 20 years, along with a fine. The prosecution also expressed apprehension that releasing the petitioner might lead to tampering with witnesses or engaging in similar offenses, particularly stressing the detrimental effect of drug sales on the younger generation.

In her detailed analysis, the Special Judge focused on the mandatory limitations imposed by Section 37 of the NDPS Act for offenses involving commercial quantities. The court noted that the petitioner was apprehended in the company of the other two accused (Accused Nos. 1 and 2), and the seizure was affected while all three were together. Crucially, the court rejected the petitioner’s argument to consider the quantity seized from him independently. The Judge ruled that the joint possession of the contraband must be taken into consideration, and since the 11 grams of MDMA seized from the group is a commercial quantity, the stringent conditions of Section 37(1)(b) apply.

Section 37(1)(b) mandates that for the court to grant bail in commercial quantity cases, it must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offense and that the accused is not likely to commit any offense while on bail.

The court heavily relied on Supreme Court precedents, including the landmark judgment in State of Kerala Vs. Rajesh (2020) and State of MP Vs. Kajad (2001), which established that “reasonable grounds” means something more than prima facie grounds and that a “liberal approach” to bail under the NDPS Act is “uncalled for.” The court observed that the existence of 11 grams of commercial quantity MDMA and 2 Kgs, 300 grams of ganja, as detailed in the mahazar and investigation papers, constituted prima facie material indicating the petitioner’s involvement.

Consequently, the court concluded that the petitioner had failed to place any material demonstrating a reasonable ground to believe he was not guilty, nor could the court be satisfied that he was not likely to commit another offense while on bail. Answering Point No. 1 (whether the petitioner made out sufficient grounds for bail) in the negative, the court proceeded to reject the petition.

The order serves as a stark reminder of the rigorous judicial scrutiny applied in cases concerning drug trafficking, reaffirming that the principle of “bail is the rule and jail is the exception” is reversed when dealing with commercial quantities under the NDPS Act, where negation of bail is the rule and its grant an exception.