CCH 33 Judge Cites Supreme Court Precedents and Section 37 Stringency for Drug Trafficking Offences
In a decisive order dated January 30, 2023, the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., rejected the second bail petition filed by accused Ashfak (A1) and Shifas P. (A2) in connection with the seizure of a commercial quantity of narcotic drugs. The petitioners were booked in Crime No. 198/2022 (and subsequently Special CC. 35/2023) for offences under Sections 8(c), 21(c), 22(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, alongside Section 14 of the Foreigners Act.
The ruling underscores the stringent parameters set by Section 37 of the NDPS Act for granting bail in cases involving commercial quantities of contraband, aligning with the intent of the law to curb the menace of drug trafficking. The court ultimately concluded that the petitioners failed to satisfy the dual conditions necessary for their release on bail.
The Case and Prosecution’s Allegations
The case was initiated based on a suo-moto complaint filed by the Sub-Inspector of Police (PSI) of the Begur Police Station. The sequence of events detailed in the prosecution’s report began on July 29, 2022, when the complainant received credible information regarding two individuals on a two-wheeler selling Hashish Oil near the Hypermarket on Koppa Road, Begur.
Acting on the confirmed information on July 31, 2022, the police, along with staff and panchas, apprehended the two individuals, who were identified as the present petitioners. Upon a personal search and subsequent detailed mahazar (seizure memo), 1 Kg, 170 grams of Hashish Oil was allegedly seized from the spot, along with cash, school bags, a weighing machine, and plastic covers.
Following the initial seizure, petitioner Ashfak (A1) was taken into police custody, leading to the further seizure of 900 grams of Hashish Oil from his Paying Guest (PG) accommodation bedroom. In their voluntary statements, A1 and A2 implicated Accused No. 3, a Nigerian citizen, as the supplier of the contraband. A3 was subsequently arrested, and 57 grams of MDMA were allegedly seized from his possession.
In total, the investigating agency claimed to have seized 2 Kg and 60 grams of Hashish Oil from the conscious possession of the petitioners (A1 and A2). This quantity is a focal point of the case, as the court noted that the commercial quantity for Hashish Oil is defined as 1 Kg, according to the Ministry of Finance, Department of Revenue Notification S.O.1055(E) dated October 19, 2001 (Sl. No. 23). The seized amount is significantly over the commercial threshold.
Petitioner’s Grounds and Prosecution’s Opposition
Represented by Sri Nataraju. T., Advocate, the petitioners sought bail, arguing that they were innocent and falsely implicated. Their main pleas included that:
- The mandatory procedures for search and seizure under the NDPS Act were not complied with.
- The alleged offence, though non-bailable, is not punishable with life imprisonment or death.
- The investigation was complete, and a charge sheet had already been filed.
- They possessed no criminal antecedents and were ready to abide by any conditions and furnish surety for their release.
The prosecution, represented by the Public Prosecutor, strongly opposed the plea. The opposition rested on the fact that the seized quantity (2.060 Kgs of Hashish Oil and 57 grams of MDMA) was a commercial quantity, punishable with rigorous imprisonment between 10 to 20 years and a heavy fine. The prosecution expressed a specific concern that if released, the petitioners, who were accused of selling drugs to the younger generation, would tamper with prosecution witnesses, abscond, or involve themselves in similar offences, thus hampering the ongoing legal process.
The Court’s Reasoning and Reliance on Apex Court
The court’s decision hinged on the strict mandate of Section 37(1)(b) of the NDPS Act, which governs bail in cases of commercial quantity seizure. This section imposes two mandatory conditions that must be satisfied before bail can be granted:
- The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence.
- The court must be satisfied that the accused is not likely to commit any offence while on bail.
To guide its decision, the court extensively referenced landmark judgments from the Honourable Supreme Court of India:
Union of India v. Mohammed Nawaz Khan (2021)
The court cited this judgment, emphasizing that the High Court and Apex Court must apply stringent scrutiny under Section 37(1)(b)(ii). The court highlighted that merely questioning the concept of “possession” (as one of the petitioners’ arguments alluded to non-compliance with search procedures) does not absolve the court of the required scrutiny. The quantum of the seized contraband (2 Kg 60 grams) being a commercial quantity was a significant factor, establishing a prima facie case against the petitioners.
State of Kerala v. Rajesh (2020)
The court quoted this decision, which clarifies that “reasonable grounds” means something more than prima facie grounds and requires a substantial probable cause for believing the accused is not guilty. The Supreme Court had previously observed that a liberal approach to bail under the NDPS Act is uncalled for, given the nature of the crime.
State of MP v. Kajad (2001) and Babua v. State of Orissa (2001)
Further cementing its legal basis, the court reiterated the principle that under Section 37, “Negation of bail is the rule and its grant an exception.” The Supreme Court had previously stressed that the liberty of a citizen must be balanced with the interest of society, particularly in drug cases where the activities are “lethal to the society.”
Conclusion and Final Order
Based on the detailed analysis of the facts and the authoritative legal precedents, the court found prima facie material available against the petitioners regarding the possession of a commercial quantity of narcotic drug. The court concluded that the petitioners had not demonstrated reasonable grounds to believe they were not guilty, thereby failing to satisfy the twin conditions of Section 37(1)(b) of the NDPS Act.
Consequently, the court rejected the second bail petition.
ORDER
The petition filed by the petitioners U/Sec.439 of Cr.P.C is hereby rejected.