Bengaluru Court Denies Bail to Accused in Commercial Quantity Hashish Oil Trafficking Case

NDPS Act Bail Denial: Bengaluru Court Upholds Section 37 in 3kg Hashish Oil Seizure

BENGALURU: In a significant ruling emphasizing the stringent provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS) in Bengaluru, Smt. B.S. Jayashree, rejected the third bail application of an accused, Aneesh P D, involved in the seizure of a commercial quantity of Hashish oil. The order, pronounced on October 20, 2023, pertains to Criminal Miscellaneous Petition No. 8290/2023, filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.) by the petitioner, who is Accused No. 4 in the main case (Spl. C.C. 662/2021). The offences alleged are serious in nature, punishable under Sections 8(c), 20(b)(ii)(c), 27A, 28, and 29 of the NDPS Act.

The Case Background and Allegations

The case originated from a National Control Bureau (NCB) operation based on credible information received on November 9, 2020. The information indicated that a person named Ranjith, along with two others, would be crossing the Devanahalli Tollgate in a Hyundai car (No. KL 01 AZ 77) carrying a substantial quantity of Hashish oil.

The NCB team intercepted the vehicle at the tollgate. The occupants were identified as Ranjith (A1/driver), Aneesh P D (petitioner/A2, though later referred to as A4 in the bail application context, the order uses A2 in the fact-finding section), and Sarang (A3). During the search, three packets of a dark brown viscous liquid, which tested positive for Hashish, were found concealed beneath the driver’s seat. The total quantity seized was 3 kilograms of Hashish oil.

The prosecution, represented by the Special Public Prosecutor, vehemently opposed the bail plea. They highlighted that the seized quantity, $3\text{ kg}$ of Hashish oil, falls under the definition of a commercial quantity, given that the commercial threshold for Hashish is $1\text{ kg}$ as per the Ministry of Finance notification. The prosecution further contended that the petitioner and his co-accused were involved in drug trafficking, citing their voluntary statements and the petitioner’s alleged past history of drug consumption and sale, as well as his prior involvement in another NDPS case (Cr. No. 46/2016 in MICO Layout Police Station). The prosecution argued that granting bail would pose a risk of the petitioner repeating the crime, absconding, or tampering with evidence, thus invoking the statutory embargo under Section 37 of the NDPS Act.

Petitioner’s Grounds for Bail

The petitioner’s counsel, Sri Binu M, sought bail primarily on grounds that the petitioner is innocent and falsely implicated. Key arguments included:

The NCB allegedly failed to follow the standing instructions regarding sampling, sealing, and dispatch.
Non-compliance with the mandatory provisions of Section 50 of the NDPS Act (right to be searched before a Gazetted Officer or Magistrate).
The Investigator Officer (IO) registered the First Information Report (FIR) approximately six hours after receiving the initial information about the cognizable offence.
The trial had not yet commenced, and the petitioner had been in judicial custody for 1 year and 6 months.
The investigation was concluded, and charge sheet filed, negating the need for further custodial interrogation.

The counsel also cited judgments from the Hon’ble Supreme Court (e.g., Mahammud Kurdeya Vs. NCB, State of Kerala Vs. Raneef, Union of India Vs. K A Najeeb) relating to custody period and delayed trial, as well as orders from various High Courts, to press for the grant of bail.

Court’s Analysis and Decision on Section 37

The Court meticulously examined the rival contentions, focusing primarily on the statutory limitations imposed by Section 37 of the NDPS Act. This section mandates that for offences involving commercial quantity, bail shall not be granted unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail.

The Special Judge, Smt. B.S. Jayashree, specifically addressed the petitioner’s argument regarding the delay in the trial. The Court noted that the case was set for framing of charges but was repeatedly adjourned due to the consistent absence of the accused, particularly Accused No. 1, who was on medical interim bail but failed to appear, and Accused Nos. 3 and 4 (the petitioner in some earlier parts) who also remained absent, necessitating the issuance of NBWs (Non-Bailable Warrants) and even the splitting up of the case against one accused. The Court firmly concluded that the delay was attributable to the accused themselves and not to the court. Therefore, the reliance on the judgments concerning delay in trial, such as Raneef and K A Najeeb, was deemed inapplicable to the facts of the present case.

Crucially, the Court relied on recent pronouncements of the Supreme Court, including Union of India through NCB, Lucknow Vs. Mohammed Nawaz Khan and NCB V/s Mohit Agarwal. In the Mohammed Nawaz Khan case, the Supreme Court emphasized that a finding on the absence of contraband from the person of the accused does not absolve the High Court of the level of scrutiny required under Section 37(1)(b)(ii). Furthermore, the Court reiterated the Mohit Agarwal dictum that the length of custody or the fact that the charge sheet has been filed and the trial has commenced are not by themselves persuasive grounds for granting relief under Section 37 of the NDPS Act.

The Court held that the prosecution papers, including the seizure panchanama, prima facie established the petitioner’s serious involvement in the drug peddling, as $3\text{ kg}$ of Hashish oil, a commercial quantity, was recovered from the vehicle in which he was traveling. The petitioner failed to satisfy the mandatory twin conditions of Section 37—that there are reasonable grounds for believing he is not guilty, and that he is not likely to commit any offense while on bail.

Consequently, the Court found no additional grounds to entertain the bail plea.

The Verdict

The petition filed by the petitioner, Aneesh P D, under Section 439 of Cr.P.C. was rejected. The detailed order underscores the judiciary’s unwavering commitment to upholding the stringent parameters for bail in commercial quantity drug trafficking cases under the NDPS Act, reinforcing the principle that negation of bail is the rule and its grant an exception in such matters.