BENGALURU, INDIA – In a significant decision, the XXXIV Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, has granted bail to two Nigerian nationals, Daniel Chibundu Ndeka and Mike Okibe Onyebunie, who were arrested in July 2023 for the alleged possession of commercial quantities of cocaine and ecstasy pills. The order, passed on October 6, 2023, under Crl.Misc. No. 8266/2023, focused heavily on the non-compliance of mandatory procedures under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The petitioners, Daniel Chibundu Ndeka (Accused No. 1, aged 25) and Mike Okibe Onyebunie (Accused No. 2, aged 37), were booked by the Kempegowda Nagar (K.G. Nagar) Police Station in Crime No. 101/2023 for offences punishable under Section 22(C) of the NDPS Act, which pertains to offences involving commercial quantities of psychotropic substances and carries a minimum sentence of ten years of rigorous imprisonment.

Details of the Seizure

The case stems from an incident on July 3, 2023, where the Police Sub-Inspector (PSI) of K.G. Nagar Police received credible information about two foreigners selling drugs near Adarsha College, Chamarajpet. A raid was subsequently carried out after obtaining a search warrant from the Deputy Commissioner of Police (DCP), South.

The police seized 260 grams of Cocaine from the possession of Accused No. 1 and 30.3 grams of Ecstasy pills (MDMA) from Accused No. 2. Based on the Central Government’s specification (SO 1055 (E)), the commercial quantity for cocaine is 100 grams and for MDMA is 10 grams. The seized quantities are well over the commercial threshold, making the bar under Section 37 of the NDPS Act applicable, which mandates that bail cannot be granted unless the court is satisfied there are “reasonable grounds for believing that the accused is/are not guilty.”

Grounds for Bail: Procedural Lapses under NDPS Act

Despite the commercial quantity involved, the counsel for the petitioners, Sri. Nishit Kumar Shetty, successfully argued that the mandatory procedural requirements of the NDPS Act were violated, thereby attracting the possibility that the bar under Section 37 is not insurmountable. The primary grounds accepted by the court were:

1. Non-Compliance with Section 42(2) (Information Recording): The court noted that when an officer receives information, it must be reduced to writing and a copy sent to the immediate superior officer. The petitioner’s counsel argued that this mandatory provision was not properly complied with, which, according to established law, is fatal to the prosecution’s case and can vitiate the trial.
2. Violation of Section 50 (Right to be Searched Before Gazetted Officer/Magistrate): The seizure mahazar revealed that the PSI called for the Assistant Commissioner of Police (ACP) for a search. However, the court found a crucial lapse: the accused were not apprised of their statutory right under Section 50 of the NDPS Act to be searched before the nearest Gazetted Officer or Magistrate. Citing the Supreme Court ruling in S.K. Raju vs. State of West Bengal, the court held that since the search was not only of the bag but also of the person of the accused (mobile phones were found in their pant pockets), the requirements of Section 50 were attracted and violated.
3. Investigation Completed Before FIR (Section 154 Cr.P.C. Violation): The most significant procedural lapse identified by the court was that the entire criminal investigation, including the raid, seizure mahazar (conducted between 2:10 PM and 5:00 PM), and arrest, was completed before the registration of the First Information Report (FIR) at 6:05 PM. Relying on a Karnataka High Court decision, the Special Judge held that completing the entire criminal investigation before registering the FIR is “impermissible in law.”
4. Lack of Prima Facie Drug Test: The court noted that the ACP had formed an opinion on the identity of the substances (cocaine and ecstasy) merely by their “shape and smell and by experience” but did not conduct a spot detection test or utilize a Field Drug Identification Test Kit, which further weakened the prosecution’s immediate prima facie case.

Judicial Reasoning and Supreme Court Precedent

In its detailed order, the court addressed the stringent requirements of Section 37 of the NDPS Act, referencing the Supreme Court’s ruling in Union of India vs. Shiva Shanker Kesari (2007) that “reasonable grounds” means more than just prima facie grounds.

However, the court also cited the recent Supreme Court judgment in Mohd Muslim @ Hussain Vs. State (NCT of Delhi) (2023 Live Law (SC) 260), which held that interpreting Section 37 literally would result in the “complete denial of the bail” and “punitive detention.” The Supreme Court clarified that the only constitutional way to view Section 37 is where the court is “reasonably satisfied on a prima facie look at the material on record… that the accused is not guilty.”

Based on the multitude of mandatory procedural violations found in the preliminary documents, the Special Judge concluded that the petitioners were able to satisfy the court that there were reasonable grounds for believing they were not guilty of the alleged offences at this initial stage. The court also held that the prosecution’s concern that the petitioners, who are Nigerian citizens, might abscond could be addressed by imposing conditions under Section 437(3) of the Cr.P.C.

Conditions for Conditional Release

The court ordered the petitioners to be released on bail on the execution of a personal bond of Rs. 2,00,000/- (Rupees Two lakh) each, along with Two sureties for the like sum.

The conditional bail includes the following mandatory terms:

1. The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case.
2. The petitioners shall regularly appear before the court.
3. The petitioners shall cooperate with the Investigation Officer (I.O) for investigation.
4. The petitioners shall not commit any similar offences or any other offences.
5. Breach of any of the conditions would automatically entail the cancellation of bail.

This judicial scrutiny of procedural safeguards under the NDPS Act underscores the critical importance of police compliance with mandatory legal provisions, even in cases involving commercial quantities of narcotic substances.