In a detailed order underscoring the severity of drug-related offenses and the stringent mandates of the NDPS Act, the XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Smt. B.S. Jayashree, Bengaluru, rejected the third bail petition of Aneesh P D, an accused in a major hashish oil seizure case. The order, pronounced on October 20, 2023, highlighted the recovery of a commercial quantity of contraband, the petitioner’s alleged criminal antecedents, and the consistent delays caused by the accused themselves in the trial proceedings.
The petitioner, Aneesh P D (Accused No. 4), aged 32, a resident of Kannur, Kerala, sought bail under Section 439 of the Cr.P.C. in connection with NCB.F No. 48/1/18/2020/BZU (Spl.C.C. 662/2021). He is being prosecuted for serious offenses under Sections 8(c), 20(b)(ii)(c), 27A, 28, and 29 of the NDPS Act, which deal with the possession of commercial quantities of drugs, financing illicit traffic, and criminal conspiracy.
The Seizure and Prosecution Allegations
The case stems from an operation by the Narcotics Control Bureau (NCB), Bengaluru, on November 9, 2020. The NCB received credible information that three individuals, including the petitioner, were transporting a substantial quantity of hashish oil in a Hyundai car (KL 01 AZ 0077) across the Devanahalli Toll Gate.
Key Allegations:
- Contraband Seizure: The NCB intercepted the vehicle and seized 3 Kgs. of Hashish Oil, which was found concealed beneath the driver’s seat. Hashish, or cannabis resin, has a commercial quantity threshold of 1 Kg. as per the Ministry of Finance notification (S.O. 1055(E) dated 19.10.2001). The seized quantity is thus a clear commercial quantity.
- Conscious Possession: The prosecution strongly argued that the 3 Kgs. of hashish oil was recovered from the conscious possession of the petitioner, along with Accused Nos. 1 and 3.
- Criminal Nexus: The investigation revealed that the petitioner, along with his co-accused, had traveled to Vishakhapatnam, Andhra Pradesh, on multiple occasions to procure drugs. Their voluntary statements and the statement of the supplier (Accused No. 5), who was later secured through a body warrant, confirmed the trafficking operation.
- Criminal Antecedents: The prosecution pointed out that the petitioner has criminal antecedents, being prosecuted in another NDPS case (Cr. No. 46/2016) at MICO Layout Police Station, Bengaluru.
Petitioner’s Grounds for Bail
The petitioner, through his counsel, advanced several grounds, primarily revolving around procedural lapses and delayed trial:
- Procedural Non-Compliance: Allegations were made that mandatory procedures, including NCB Standing Instructions 1/88 regarding sampling and sealing, and the provisions of Section 50 (search before a Gazetted Officer or Magistrate), were not complied with.
- Delay in FIR: It was argued that the Investigating Officer (IO) delayed registering the FIR for approximately six hours after receiving the initial information, questioning the legality of the process.
- Delayed Trial: The petitioner, who had been in judicial custody for over 1 year and 6 months, claimed that the trial had not yet commenced and that his continued detention amounted to pre-trial punishment, citing his Article 21 (right to life and liberty) right.
The Court’s Findings on Procedural Lapses and Delay
The Court meticulously addressed the petitioner’s contentions, particularly the issue of trial delay. The judge’s observation was critical of the conduct of the accused and their counsel:
- Delay Attributable to Accused: The court noted that while the matter was posted for framing charges, the proceedings were repeatedly stalled because the Accused Nos. 1, 3, and 4 (the petitioner) were consistently absent. Accused No. 1, represented by the same counsel, was out on interim medical bail but failed to appear, forcing the court to grant repeated exemptions. Accused No. 3’s case had to be split up due to non-appearance. The judge observed, “When accused themselves are delaying the process of law on remaining absent, they cannot take up a contention that there is delay in the matter.”
- Procedural Non-Compliance: Citing Supreme Court precedents, the court noted that non-compliance with procedural sections like Section 42 of the NDPS Act is a “question of fact” that must be proven during the trial and cannot be a decisive factor for bail at the pre-trial stage, especially when there is prima facie material against the accused.
Upholding the Stringency of Section 37 of the NDPS Act
The core of the rejection rested on the mandatory limitations imposed by Section 37(1)(b) of the NDPS Act, which governs bail for commercial quantity offenses.
The court heavily relied on several authoritative Supreme Court judgments:
- Union of India v. Mohammed Nawaz Khan (2021): The court quoted this ruling, emphasizing that even the “absence of recovery of the contraband from the possession of the respondent” does not absolve the court of the stringent scrutiny required under Section 37. In this case, the recovery was made from the vehicle the petitioner was traveling in, indicating “conscious possession.”
- NCB V/s Mohit Agarwal (2022): This judgment was cited to establish that the “length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief” under Section 37.
- State of Kerala Vs. Rajesh (2020) and Babua Vs. State of Orissa (2001): These cases reiterated that for commercial quantity offenses, “Negation of bail is the rule and its grant an exception”. The court must have “reasonable grounds” to believe the accused is not guilty (which means something more than a prima facie suspicion) and is not likely to commit any offense while on bail, a burden the petitioner failed to discharge.
The court concluded that the final report indicated the petitioner’s “serious involvement in drug peddling” and that there was no material to suggest he was unconnected to the crime. Given the commercial quantity seizure (3 Kgs. of Hashish Oil) and the evidence pointing to a trafficking conspiracy, the mandatory twin conditions for bail under Section 37 were not satisfied.
The petition filed by Aneesh P D was thereby rejected, affirming the judicial principle that the fight against narcotic drug trafficking takes precedence over ordinary bail considerations.