BENGALURU, DECEMBER 12, 2022 – The XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, has rejected the regular bail application filed by two petitioners, Dilawar Hussain and Radhika Sehrai, who were arrested in connection with a drug trafficking case. The court, presided over by SMT. B.S. JAYASHREE, ruled that the seizure of a commercial quantity of the narcotic drug LSD from the premises, along with multiple other drugs, attracted the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, creating a clear legal embargo against granting bail.
The petitioners, Dilawar Hussain (Accused No. 1) and Radhika Sehrai (Accused No. 2), had filed the petition under Section 439 of the Cr.P.C., seeking release in Crime No. NCB F No.48/1/28/2022/BZU, registered by the Narcotics Control Bureau (NCB), Bangalore Zone. The offenses alleged included multiple violations under the NDPS Act, specifically Sections 8(c), 20(b)(ii)(A), 21(b), 22(b), 22(c), 23, 25, 27A, 28, and 29.
The Grounds of Arrest and Seizure
The case against the petitioners originated from a secret information received by the NCB on November 21, 2022, suggesting that Dilawar Hussain, his girlfriend Radhika Sehrai, and her roommate Nivedita (Accused No. 3) were storing a substantial quantity of various drugs at a flat in Maithri Opulence, New Thippasandra, Bengaluru.
A house search was conducted on November 22, 2022, during which the NCB seized a combination of different drugs:
- LSD: 0.29 grams
- Cocaine: 2.22 grams
- Amphetamine: 2.14 grams
- Hashish: 6.18 grams
- Ganja: 101 grams
The three inmates—Dilawar Hussain, Radhika Sehrai, and Nivedita Jaishankar—were present during the search. Following the seizure and recording of their statements regarding the conscious possession of the contraband, they were arrested on November 23, 2022.
In a follow-up action on November 28, 2022, based on the voluntary statement of Petitioner No. 1, Dilawar Hussain, the NCB seized an additional 34 grams of Ganja from a parcel at UPS Express Pvt. Ltd., bringing the total quantity of Ganja recovered in the case to 135 grams.
Petitioner’s Defense and Prosecution’s Objection
The petitioners argued that they were innocent and falsely implicated, claiming that the contraband was planted and that the mandatory provisions for search and seizure were not complied with. They contended that nothing was seized directly from their possession and that the alleged recovery was from the flat, which was also used by Accused No. 3. The defense emphasized that the total quantity of Ganja seized (135 grams) falls under the “small quantity” threshold of 1000 grams, minimizing the severity of the charge related to cannabis.
The prosecution, represented by the Special Public Prosecutor, strongly opposed the application. They argued that a prima facie case exists, that the petitioners were in conscious possession of the contraband, and that the offences are heinous, punishable with up to 20 years of rigorous imprisonment. The primary objection centered on the applicability of Section 37 of the NDPS Act.
Court’s Application of Stringent NDPS Law
The Special Judge meticulously analyzed the quantities of the seized drugs in light of the Ministry of Finance Notification S.O.1055(E) dated October 19, 2001, which specifies small and commercial quantities.
The court noted that while the Ganja seized (135 grams) and the Hashish seized (6.18 grams) were below their respective commercial quantity thresholds (20 Kgs for Ganja and 1 Kg for Hashish), the quantity of LSD seized was decisive.
The notification specifies that 0.002 grams of LSD is a small quantity, but 0.1 gram is a commercial quantity. The seizure of 0.29 grams of LSD blotter papers was found by the court to be well over the commercial threshold.
The court heavily relied on Section 37 of the NDPS Act, the non obstante clause of which imposes two mandatory conditions before bail can be granted in cases involving commercial quantity:
- The Public Prosecutor must be given an opportunity to oppose the application.
- The court must be satisfied that there are reasonable grounds for believing the accused is not guilty of the offense and that they are not likely to commit any offense while on bail.
Referring to landmark Supreme Court judgments, including Union of India Vs. Rattan Mallik @ Habul and State of Kerala Vs. Rajesh, the court reiterated that “reasonable grounds” means something more than prima facie grounds—it requires a substantial probable cause for believing the accused is innocent.
Given the seizure of multiple drugs, including a commercial quantity of LSD (0.29 grams) from the room of Petitioner No. 2 where Petitioner No. 1 was also present, the court determined there was a prima facie material available against the petitioners. The defense failed to place any material before the court to establish that the petitioners were not in conscious possession of the commercial quantity of contraband.
The court concluded: “At this stage, there is primafacie material available against the petitioners in regard to the possession of commercial quantity of narcotic drug… In the result, I proceed to hold that the petitioners herein have not made out any grounds to entertain their plea for bail.”
Consequently, the petition for bail filed by Dilawar Hussain and Radhika Sehrai was rejected.