Bengaluru, December 12, 2022 — The XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) in Bengaluru, Smt. B.S. Jayashree, LL.M., rejected the second bail petition of Amjad Khan, who is Accused No. 4 in a case involving the seizure of multiple commercial quantities of narcotic drugs. The order, delivered in Crl. Misc. No. 11681/2022, emphasizes the stringent parameters governing bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, especially when commercial quantities are involved.
The Charges and Seizure
Amjad Khan, 28, a resident of R.T. Nagar, Bengaluru, was arrested in connection with Cr. No. 39/2022 registered by the KG Nagar Police Station. The charges against him fall under Sections 22(c), 20(b)(ii)(b), and 27A of the NDPS Act. The punishment for the primary offences involved, particularly Section 22(c), stipulates rigorous imprisonment for a term which shall not be less than ten years but may extend up to twenty years, along with a fine.
The prosecution, while opposing the bail, highlighted the significant quantity of contraband seized:
- MDMA: $23.83 \text{ grams}$
- LSD papers: $0.56 \text{ grams}$
- Ecstasy tablets: $2.67 \text{ grams}$
- Ganja: $1 \text{ Kg}, 100 \text{ grams}$
The court confirmed that both the quantity of MDMA ($23.83 \text{ grams}$) and the quantity of LSD ($0.56 \text{ grams}$) are classified as commercial quantities under the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated 19.10.2001. Specifically, the commercial quantity threshold for MDMA is $10 \text{ grams}$, and for LSD is $0.1 \text{ gram}$.
Petitioner’s Arguments for Second Bail
Represented by Advocate Sri. Syed Abrar, Amjad Khan filed his second bail petition after the charge sheet was filed, seeking release on the following grounds:
- He maintained his innocence and claimed he was falsely implicated.
- He alleged non-compliance with mandatory NDPS Act procedures during the recovery.
- He claimed he was apprehended forcefully from his residence on March 26, 2022, and illegally detained for two days, challenging the prosecution’s place of arrest.
- He argued there was no recovery of contraband directly from him, and the seized Ganja ($1 \text{ Kg}, 100 \text{ grams}$) was only an intermediate quantity.
- He contended that since the charge sheet has been filed, his further detention is unwarranted and would spoil his career.
Judicial Analysis and Rejection of Bail
The Court, presided over by Smt. B.S. Jayashree, meticulously examined the records and the legal requirements under Section 37 of the NDPS Act, which imposes mandatory restrictions on granting bail for commercial quantity offences.
Commercial Quantity and Joint Possession
The court rejected the petitioner’s attempt to downplay the severity of the seizure by focusing solely on the quantity of Ganja (intermediate quantity). Instead, the court emphasized the seizure of commercial quantities of both MDMA and LSD.
Crucially, the court addressed the petitioner’s claim of “no recovery” directly from him. The evidence showed that Amjad Khan (A-4) was apprehended along with Accused Nos. 1 to 3, and the commercial quantity of contraband was seized from their joint possession in the scooter’s dicky. The court observed, “The investigating agency seized the contraband from the joint possession of present petitioner and other accused. The present petitioner was present when there is seizure of commercial quantity of contraband from accused No. 1 and 2.”
Non-Applicability of Precedent
The petitioner’s counsel cited a Karnataka High Court order (Crl.Petition No. 10576/2022) where bail was granted despite allegations of commercial quantity seizure. The Court distinguished this precedent, noting that “The facts and circumstances of the said case differs from the present case” and therefore could not be applied.
The Mandate of Section 37 of NDPS Act
The core of the rejection rested on the strict mandate of Section 37(1)(b)(ii) of the NDPS Act. The court extensively referred to Supreme Court judgments, including:
- Union of India through NCB v. Mohammed Nawaz Khan (2021): This judgment requires courts to satisfy two conditions for granting bail: (1) reasonable grounds to believe the accused is not guilty, and (2) the accused is not likely to commit any offence while on bail. The Supreme Court had previously set aside a High Court order that overlooked the required level of scrutiny under Section 37 based on a finding of “absence of recovery on the person” of the accused.
- State of Kerala v. Rajesh (2020): This case clarified that “reasonable grounds” means something more than prima facie grounds and contemplates substantial probable cause for believing the accused is not guilty. It cautioned against a “liberal approach” to bail under the NDPS Act.
- State of MP v. Kajad (2001): The Court reiterated that “Negation of bail is the rule and its grant an exception” under Section 37.
Applying these rigorous legal standards, the court concluded that the petitioner had failed to demonstrate “reasonable grounds” for believing he was not guilty, especially given the prima facie evidence of possession of commercial quantities of drugs seized from the group. The judge stressed that “Mere filing of charge sheet in a case of heinous offence is not a ground to enlarge him on bail.”
Conclusion
Finding that the two mandatory conditions under Section 37 of the NDPS Act were not satisfied, the Court answered the point for consideration in the Negative.
ORDER
The petition filed by the petitioner U/Sec.439 of Cr.P.C is hereby rejected.