In a decisive order passed on July 25, 2022, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases in Bengaluru dismissed the bail application filed by Akash Chakri (Accused No. 2), Mohammed Tabreq (Accused No. 3), and Asadulla (Accused No. 4). The court, presided over by Smt. B.S. Jayashree, refused to grant relief under Section 439 of the Code of Criminal Procedure (Cr.P.C.) in Crime No. 242/2022, registered at K.G. Halli Police Station.
Background of the Case
The criminal prosecution was initiated based on a report prepared by the Police Sub-Inspector of K.G. Halli Police Station. On July 7, 2022, at around 7:30 PM, police received credible intelligence indicating that five individuals on three motorcycles had gathered near the Santhe Maidana gate in Kacharakanahalli, Bengaluru, armed with deadly weapons to commit an illegal act.
Upon securing necessary authorization from senior officers, a police team accompanied by independent witnesses (panchas) raided the spot. The authorities apprehended four individuals, while one suspect escaped. Search operations led to the following recoveries:
- Accused No. 1: 13 grams of MDMA.
- Akash Chakri (Accused No. 2): A 26-inch long, 1.5-inch wide dagger/talvar.
- Mohammed Tabreq (Accused No. 3): An iron long.
- Asadulla (Accused No. 4): A dagger.
A spot mahazar was drawn, and the accused were arrested. A case was registered under Sections 399 (Making preparation to commit dacoity) and 402 (Assembling for purpose of committing dacoity) of the Indian Penal Code (IPC), Section 25(1)(B) of the Arms Act, and Sections 8(c) and 21(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Contentions of the Petitioners
Seeking regular bail, the petitioners (Accused Nos. 2, 3, and 4) submitted through their counsel:
- They are innocent law-abiding citizens falsely implicated by the police.
- The mandatory procedure contemplated under the NDPS Act for recovery was not followed during the search.
- The contraband was recovered from Accused No. 1, not from their personal possession.
- They expressed readiness to abide by any court conditions and furnish solvent sureties for their appearance.
Objections by the Prosecution
The prosecution, represented by the Public Prosecutor, strongly opposed the bail petition, highlighting:
- The total quantity of MDMA seized was 13 grams, which constitutes a commercial quantity under the law.
- The petitioners were caught red-handed alongside Accused No. 1 while carrying deadly weapons to commit dacoity.
- Accused No. 1 is a known rowdy-sheeter with multiple pending criminal cases, and the petitioners conspired with him to commit violent crimes to satisfy financial needs.
- Release on bail would carry a high risk of absconding, witness tampering, or reoffending.
Court’s Analysis and Statutory Bar under Section 37 NDPS Act
The Special Judge evaluated the gravity of the charges, the nature of recoveries made, and the applicability of the NDPS Act rules.
Classification of MDMA Quantity
Under Notification S.O.1055(E) dated October 19, 2001 (Sl. No. 134), issued by the Ministry of Finance (Department of Revenue):
- Small Quantity: Up to 0.5 grams
- Commercial Quantity: 10 grams and above
The recovery of 13 grams of MDMA exceeds the 10-gram threshold, placing the case under the commercial quantity bracket.
Mandatory Threshold under Section 37(1)(b)
The court relied on the Supreme Court judgment in Babua v. State of Orissa (2001 2 SCC 566), which established that under Section 37(1)(b) of the NDPS Act, bail in commercial quantity cases can only be considered if two mandatory conditions are met:
- The court must have reasonable grounds to believe that the accused is not guilty of the alleged offence.
- The court must be satisfied that the accused is not likely to commit any offence while on bail.
The court noted that the petitioners were apprehended at the scene with deadly weapons in the company of Accused No. 1, who held commercial quantities of MDMA. Given the evidence indicating planning for dacoity and gang activity, the statutory twin conditions under Section 37 could not be satisfied in favor of the petitioners.
Final Order
Finding no sufficient grounds to enlarge the accused on bail, the Special Court answered Point No. 1 in the negative and formally rejected the bail application filed under Section 439 Cr.P.C. for Akash Chakri, Mohammed Tabreq, and Asadulla.