Bengaluru, Karnataka – The XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS) in Bengaluru, on January 11, 2023, rejected the bail application of a foreign national, Amar Mohammed (Accused No. 1), who was arrested with a commercial quantity of MDMA (Methylenedioxymethamphetamine), a psychotropic substance.
The bail petition (Crl. Misc. No. 12569/2022), filed under Section 439 of the Cr.P.C., was dismissed after the court held that the quantity of contraband seized—50 grams—attracts the stringent bail conditions prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The accused was booked under Section 8(c) read with Section 22(c) of the NDPS Act, and Section 14 of the Foreigners Act.
⚖️ The Allegations and Seizure
The case, registered as Crime No. 569/2022 at Banaswadi Police Station, stemmed from a raid conducted on December 8, 2022. The Police Inspector (PI) of the CCB Office received credible information that an African citizen was selling MDMA crystals near Sukhsagar Hotel, Kammanahalli.
Acting on the intelligence, the PI secured panchas and conducted a raid. The suspect, later identified as Amar Mohammed, a 22-year-old on a Student VISA residing in Bengaluru, was apprehended. The court records note that during the personal search of the accused, 50 grams of prohibited MDMA was recovered, weighed, and seized under a detailed mahazar (seizure report).
The prosecution also alleged that the accused had purchased the MDMA from Nigerians residing in India for further sale to the public.
🚫 NDPS Act’s Stringent Bail Criteria
The core of the court’s rejection rested on the classification of the seized quantity and the mandatory restrictions imposed by Section 37 of the NDPS Act for offences involving a commercial quantity.
Commercial Quantity Determination
The court meticulously analyzed the quantity seized:
- Contraband Seized: 50 grams of MDMA.
- Official Classification (Ministry of Finance Notification S.O. 1055(E) dated 19.10.2001, Sl. No. 134): For MDMA, the Commercial Quantity is 10 grams.
- Court’s Finding: Since the seized quantity of 50 grams is significantly above the 10-gram commercial quantity threshold, the strict provisions of Section 37 of the NDPS Act are applicable.
The Bar of Section 37
Section 37(1)(b) of the NDPS Act imposes two mandatory conditions that must be satisfied before bail can be granted for offences involving a commercial quantity:
- The Public Prosecutor must be given an opportunity to oppose the application.
- The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail.
The court, citing the Supreme Court judgment in State of Kerala Vs. Rajesh [(2020) 12 SCC 122], emphasized that “reasonable grounds” means something more than prima facie grounds and requires a substantial probable cause for believing the accused is not guilty.
🏛️ Judicial Reasoning and Rejection of Defence Pleas
The petitioner’s counsel had argued several points, including:
- Procedural lapses: Non-compliance with arrest procedures, discrepancies in the arrest notice date (December 9, 2022) versus the arrest date (December 8, 2022), and non-signature of the accused on seizure documents.
- Foreigners Act: Contention that Section 14 of the Foreigners Act doesn’t apply as the petitioner possessed a valid VISA.
- Absence of independent witnesses during search and seizure.
The court systematically addressed these arguments:
- Procedural Flaws: The court noted that the contention regarding non-compliance with the arrest procedure was without basis, stating that the accused was apprehended, brought to the Police Station, and then arrested. Furthermore, the court held that procedural non-compliance is a question of fact to be decided during the trial, and cannot be a ground to satisfy the mandatory twin conditions of Section 37 at the bail stage. The court referred to the Supreme Court’s ruling in Union of India vs. Mohammed Nawaz Khan, which noted that a finding of absence of possession on the person does not absolve the court of the high level of scrutiny required under Section 37.
- Prima-facie Guilt: The court noted the prima-facie material available, specifically the recovery of a commercial quantity of MDMA from the petitioner during a personal search, which was documented in the mahazar.
Emphasis on Societal Interest
Quoting the Supreme Court’s observation in Babua Vs. State of Orissa [(2001) 2 SCC 566], the court underscored the principle that the liberty of a citizen must be balanced with the interest of the society. The court stated, “In cases where narcotic drugs and psychotropic substances are involved, the petitioner would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings…”
The court concluded that the petitioner failed to place any material to reasonably believe he was not guilty or was not likely to commit any offence while on bail. Consequently, the bail petition was rejected.