Executive Summary of the Ruling
On July 21, 2022, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bengaluru, presided over by Smt. B.S. Jayashree, rejected Criminal Miscellaneous Petition No. 6239/2022. The court denied regular bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.) to Kante Moussa (Accused No. 2, aged 29 years) and Ewere Endurance Sunday (Accused No. 3, aged 28 years), both residing in Kalyan Nagar, Bengaluru.
The petitioners were arrested in connection with Crime No. 87/2022, registered by D.J. Halli Police Station for offences punishable under Sections 8(c) and 21(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, Section 14 of the Foreigners Act, and Section 12 of the Passport Act. The Special Court dismissed the bail petition primarily on the ground that the seizure of 30 grams of MDMA from the accused constitutes a commercial quantity, thereby invoking the strict statutory bar against bail under Section 37 of the NDPS Act.
Case Overview and Factual Background
The Interception and Search
According to the prosecution report submitted by the Police Sub-Inspector (PSI) of D.J. Halli Police Station, credible information was received on March 13, 2022, at approximately 11:30 PM. The information indicated that near the railway track in Anand Gokula Layout, certain foreign nationals were selling prohibited drugs to customers.
After notifying superior officers and obtaining authorization to conduct a raid, the police team, accompanied by independent panchas, proceeded to the spot and intercepted the suspects. Upon questioning, they disclosed their identities as Kante Moussa (Accused No. 2) and Ewere Endurance Sunday (Accused No. 3).
A personal search conducted at the spot yielded 30 grams of MDMA from Accused No. 1 and the petitioners. A detailed seizure mahazar was drawn, and Crime No. 87/2022 was registered under the NDPS Act, Foreigners Act, and Passport Act. The petitioners were formally arrested, produced before the jurisdictional Magistrate, and remanded to judicial custody.
Legal Arguments Advanced
Submissions by the Petitioners
Advocate Sri D.P., representing Accused Nos. 2 and 3, submitted the following grounds in support of the bail application:
- Innocence and False Implication: The petitioners maintained that they were innocent law-abiding citizens who had been falsely implicated by the police without proper preliminary enquiry.
- Procedural Non-Compliance: Mandatory provisions governing search, seizure, and recovery under the NDPS Act were not followed by the raiding party.
- Absence of Life/Death Penalty: The alleged offences do not carry the death penalty or life imprisonment.
- Willingness to Furnish Sureties: The petitioners offered to abide by any conditions imposed by the court and furnish solvent sureties to ensure their regular appearance during proceedings.
Objections by the Prosecution
The Public Prosecutor strongly opposed the bail petition on the following grounds:
- Seizure of Commercial Quantity: The recovery of 30 grams of MDMA exceeds the commercial threshold of 10 grams set by statutory notification.
- Severity of Punishment: Offences involving commercial quantities under Section 21(c) of the NDPS Act carry mandatory minimum rigorous imprisonment of 10 years, extendable up to 20 years, along with heavy fines.
- Risk of Absconding and Recidivism: As foreign nationals implicated under the Foreigners Act and Passport Act, releasing the petitioners would pose an extreme risk of absconding, witness tampering, and repeat drug peddling.
Detailed Judicial Reasoning and Findings
1. Statutory Thresholds under Notification S.O.1055(E)
The Special Judge evaluated the classification of MDMA under Ministry of Finance (Department of Revenue) Notification S.O.1055(E) dated October 19, 2001 (Entry No. 134):
- Small Quantity: Up to 0.5 grams (or 5 grams as noted in entry variations)
- Commercial Quantity: 10 grams and above
Because the total recovery from the accused was 30 grams of MDMA, the court held that the seized psychotropic substance was three times higher than the commercial quantity threshold.
| Contraband Category | Statutory Threshold | Quantity Seized in Present Case |
| Small Quantity | Up to 5 grams | — |
| Intermediate Quantity | 5.01 grams to 9.99 grams | — |
| Commercial Quantity | 10 grams and above | 30 grams (Seized) |
2. Mandatory Limitations under Section 37 of the NDPS Act
The court emphasized that for offences involving commercial quantities, Section 37(1)(b) of the NDPS Act establishes a strict statutory bar against granting bail. The court can grant bail only if two cumulative conditions are satisfied:
- The court is satisfied that there exist reasonable grounds for believing that the accused is not guilty of the alleged offence.
- The court is satisfied that the accused is not likely to commit any offence while on bail.
3. Binding Precedents Cited
The Special Court relied on landmark Supreme Court decisions governing bail in commercial quantity NDPS cases:
- Union of India v. Mohammed Nawaz Khan (2021) / Crl. Appeal No. 1043/2021: The Supreme Court held that the presence of commercial quantities of contraband, combined with conscious possession and prima facie evidence, attracts Section 37. Procedural issues regarding Section 42 compliance are questions of fact to be adjudicated during trial, not grounds for bail.
- State of Kerala v. Rajesh (2020) 12 SCC 122: The Apex Court clarified that “reasonable grounds” mean something more than prima facie grounds; it requires substantial probable cause for believing that the accused is not guilty. A liberal approach to bail under the NDPS Act is uncalled for.
- State of M.P. v. Kajad (2001) 7 SCC 673: The Supreme Court observed that under Section 37(1)(b)(ii), negation of bail is the statutory rule, and the grant of bail is a rare exception.
- Babua v. State of Orissa (2001) 2 SCC 566: The Apex Court emphasized that individual liberty must be balanced against societal interest, highlighting that illicit drug trafficking poses a severe threat to public welfare.
4. Direct Recovery and Lack of Defense Material
The Special Court observed that the petitioners were apprehended at the scene of the incident with the contraband in their conscious possession, and their voluntary statements had been recorded. The defense failed to place any material on record to show that they were unconnected with the 30 grams of MDMA seized from the spot.
Final Order
The Special Court answered Point No. 1 in the negative and formally rejected the bail petition.
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| FINAL ORDER |
| |
| The petition filed by the petitioners (Accused Nos. 2 & 3) under |
| Section 439 of Cr.P.C. is hereby REJECTED. |
| |
| Pronounced in Open Court on July 21, 2022. |
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