BENGALURU, INDIA — The XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, has rejected the anticipatory bail petition of Ashwini H. (Accused No. 7), who is facing serious charges under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The order, delivered by Smt. B.S. Jayashree on December 19, 2022, found prima facie evidence linking the petitioner to drug trafficking activities involving a commercial quantity of MDMA and LSD, and emphasized the stringent conditions for bail under Section 37 of the NDPS Act.
The petition, Crl.Misc. No. 11853/2022, was filed under Section 438 of the Cr.P.C. in connection with Byadarahalli Police Station Crime No. 224/2021 (Special C.C. No. 1876/2021). The offences alleged include Sections 8(c), 21(c), 22(c), 23(c), 27(a), and 29(ii)(b) of the NDPS Act, which cover possession, sale, and criminal conspiracy involving psychotropic substances.
The Case and Seizure of Commercial Quantity
The prosecution’s case is built on credible information received by the complainant police on June 22, 2021, which led to a raid at a paying guest (PG) accommodation near East West College. During the operation, five accused persons were apprehended.
The seizure made from these accused persons included:
- 207 grams of MDMA (Methylenedioxymethamphetamine)
- 1.67 grams of LSD (Lysergic acid diethylamide)
The court highlighted the gravity of the seizure by referencing the Ministry of Finance Notification S.O. 1055(E), which classifies 10 grams of MDMA as a commercial quantity. Since 207 grams of MDMA was seized, the total quantity recovered is deemed commercial, triggering the severe restrictions on bail under Section 37 of the NDPS Act. The charges also include Section 27(a) (financing illicit traffic and harboring offenders) and Section 29 (criminal conspiracy), indicating an organized drug peddling operation.
Petitioner’s Defense and Prosecution’s Objections
The petitioner, Ashwini H., contended that she was innocent, falsely implicated, and had no knowledge of the crime. Her counsel argued that:
- No contraband was recovered from her person.
- She was merely a friend of Accused No. 6.
- She was seeking anticipatory bail due to an apprehension of being falsely taken into custody.
- A co-accused (Accused No. 8) had already been granted anticipatory bail, suggesting her case was similar.
- She is the sole bread earner of her family and was ready to abide by any conditions.
The prosecution countered these arguments by asserting that the petitioner was involved in the crime and was required for investigation. The Public Prosecutor argued that if released, she could continue drug trafficking, abscond, and tamper with evidence.
Judicial Analysis and Section 37 Mandate
The court’s decision rested heavily on the application of Section 37(1)(b) of the NDPS Act, which prohibits the release of an accused on bail for offences involving a commercial quantity unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
The Judge meticulously reviewed the investigation papers, which revealed strong links between the petitioner and the drug network:
- Direct Involvement in Trafficking: The investigation material, including the voluntary statements of Accused Nos. 1 to 5, indicated that they had purchased the commercial quantity of MDMA from Accused No. 4 and Accused No. 5.
- Drug Courier and Financial Links: The petitioner (Accused No. 7) and Accused No. 6 (an absconding accused) were allegedly doing drug peddling from Himachal Pradesh. The petitioner, along with another individual, sent drugs through courier using false addresses to the apprehended accused.
- Monetary Transactions: Accused Nos. 1 to 5 disclosed that they had sent money to the petitioner and another individual via online transactions as payment for the drugs.
- Absconding Status: The court noted that Ashwini H. was absconding since the date of the case registration and was shown as such in the charge sheet. The Judge reasoned that if she was truly unconnected to the case, she would not have absconded.
The court cited several Apex Court rulings, including the landmark judgment in Union of India vs. Rattan Mallik and the decision in Union of India through NCB vs. Mohammed Nawaz Khan, to reinforce that the mere absence of recovery of contraband from the person of the accused does not absolve the court of applying the stringent test under Section 37. The Supreme Court in the Mohammed Nawaz Khan case emphasized the need to consider the accused’s role, travel with co-accused, communication links, and the commercial quantity involved.
Conclusion on Bail
The Judge concluded that the investigation papers provided prima facie reasonable grounds to believe that the petitioner was actively involved in drug trafficking, in close acquaintance with the main accused, and had financial transactions with them related to the illicit trade.
Given the commercial quantity of drugs seized and the petitioner’s links to the drug supply chain, the court determined that the petitioner had failed to satisfy the mandatory dual conditions of Section 37 of the NDPS Act. The plea for the extraordinary relief of anticipatory bail was consequently rejected.
The court’s final order stated: “The petition filed by the petitioner U/Sec.438 of Cr.P.C is hereby rejected.” This rejection underscores the Judiciary’s commitment to tackling the menace of drug trafficking by strictly applying the deterrent provisions of the NDPS Act, even when dealing with pre-arrest bail applications.