In a significant judicial order under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the Special Court for NDPS cases in Bengaluru dismissed the bail application filed by accused Khaseem Shariff (Accused No. 5) and Yaseen Pasha (Accused No. 8). The order was pronounced by Smt. B.S. Jayashree, XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, in Criminal Miscellaneous Petition No. 7003/2022. The court ruled that when commercial quantities of narcotic substances are recovered from the conscious possession of accused persons, the stringent statutory bar under Section 37(1)(b) of the NDPS Act applies, making negation of bail the general rule.

Overview of the Prosecution Case

The criminal prosecution arose out of an investigation initiated by the Begur Police Station under Crime No. 162/2022. On June 17, 2022, the Police Sub-Inspector (PSI) received credible intelligence regarding the illicit sale of ganja by an unknown individual in a vacant plot near AECS Layout, Basapura Main Road. Following procedural compliance and obtaining permission from senior officers, the police conducted a raid and apprehended Accused No. 1, recovering 1.190 Kilograms of ganja from his personal possession.

During interrogation, Accused No. 1 disclosed that he had procured the contraband from Odisha and implicated co-accused persons. Subsequent investigative follow-ups led to the arrest of Accused Nos. 2 and 3 on June 21, 2022, near Nice Road Bridge, Subashnagar, with 3.530 Kilograms of ganja.

Further disclosures made by Accused Nos. 2 and 3 led law enforcement to Koodlu Gate Subway and Basava Circle on Begur-Koppa Road, Hulimavu, on June 26, 2022. The police intercepted a white Suzuki Ciaz car bearing registration number KA 12 Z 6644, in which Accused Nos. 5 to 8 were traveling. A thorough search of the vehicle yielded a massive stash of 36.854 Kilograms of ganja stored inside. The entire commercial network investigation resulted in total seizures of 48.930 Kilograms of ganja across all connected accused persons.

Arguments Advanced by the Defense

Represented by advocate Sri S.K.V., petitioners Khaseem Shariff and Yaseen Pasha filed a joint application under Section 439 of the Code of Criminal Procedure (Cr.P.C.) seeking regular bail. Counsel raised several legal grounds:

1. Claim of Innocence and False Implication: The petitioners maintained that they were innocent, law-abiding citizens falsely implicated in the case without any direct connection to the illegal trade.
2. Procedural Defects in Search and Seizure: The defense contended that mandatory search and seizure protocols under the NDPS Act were violated, creating severe doubt regarding the legitimacy of the recovery process.
3. Completion of Primary Investigation: Counsel argued that a major portion of the investigation had concluded and further custodial interrogation was unwarranted.
4. Permanent Residence and Cooperation: The petitioners affirmed their status as permanent residents of Mysuru and expressed willingness to comply with any bail conditions imposed by the court.

Objections Raised by the Prosecution

The Public Prosecutor filed strong objections opposing the bail application on behalf of the State:

1. Seizure of Commercial Quantity: The prosecution pointed out that 36.854 Kilograms of ganja was seized directly from the vehicle occupied by petitioners Khaseem Shariff and Yaseen Pasha, forming part of an overall recovery of 48.930 Kilograms in Crime No. 162/2022.
2. Prima Facie Material and Severe Penalties: The State argued that a clear prima facie case existed against the petitioners for offenses punishable with rigorous imprisonment up to 10 to 20 years along with heavy fines.
3. Risk of Recidivism and Abscondance: The prosecution submitted that the petitioners were habitual drug dealers who, if released on bail, would re-engage in illicit drug distribution, tamper with prosecution evidence, or flee from justice.

Judicial Reasoning and Legal Analysis

Special Judge Smt. B.S. Jayashree evaluated the material on record to determine whether the petitioners fulfilled the strict legal criteria for bail under Section 439 Cr.P.C. read with Section 37 of the NDPS Act.

Classification of Contraband Quantity

Under Ministry of Finance Notification S.O. 1055(E) dated October 19, 2001 (Entry No. 55), the statutory threshold limits for ganja are specified as follows:

• Small Quantity: Up to 1,000 grams (1 Kilogram)
• Commercial Quantity: 20 Kilograms or more

Because the contraband recovered directly from the Suzuki Ciaz vehicle occupied by petitioners Khaseem Shariff and Yaseen Pasha weighed 36.854 Kilograms (and the aggregate case seizure stood at 48.930 Kilograms), the court held that the seized substance fell squarely into the “commercial quantity” category.

Application of Section 37 NDPS Act Twin Conditions

The court stressed that in cases involving commercial quantities, Section 37(1)(b) of the NDPS Act creates a statutory bar against granting bail unless two cumulative conditions are established:

1. Satisfactory reasonable grounds exist for believing that the accused is not guilty of the alleged offense.
2. The court is satisfied that the accused is not likely to commit any offense while on bail.

To delineate these requirements, the court cited prominent Supreme Court decisions:

• Union of India vs. Mohammed Nawaz Khan (2021): The Apex Court held that traveling in a vehicle containing concealed commercial quantities of contraband, combined with operational links between co-accused, establishes conscious possession. Technical procedural objections under Section 42 are matters of trial fact and do not bypass Section 37 scrutiny.
• State of Kerala vs. Rajesh (2020) 12 SCC 122: The Supreme Court clarified that “reasonable grounds” mean substantial probable cause to believe in the innocence of the accused, cautioning lower courts against a liberal approach in NDPS bail matters.
• State of M.P. vs. Kajad (2001) 7 SCC 673: The Apex Court affirmed that under Section 37(1)(b)(ii), “negation of bail is the rule and its grant an exception.”
• Babua vs. State of Orissa (2001) 2 SCC 566: The Supreme Court emphasized balancing individual liberty against public safety, ruling that individuals involved in lethal narcotics trafficking must remain in custody during trial.

Findings on Possession and Prima Facie Evidence

The court observed that petitioners Khaseem Shariff and Yaseen Pasha were intercepted while traveling in the vehicle used to transport 36.854 Kilograms of ganja. The defense failed to place any material on record to show that the petitioners were not in conscious possession of the seized narcotics or that they were innocent of the charges.

Given the commercial nature of the seizure and the lack of evidence establishing innocence, the court found no basis to conclude that the petitioners would not engage in similar offenses if enlarged on bail.

Final Order

Finding that petitioners Khaseem Shariff and Yaseen Pasha failed to satisfy the mandatory twin conditions under Section 37 of the NDPS Act, the court answered the point for consideration in the negative.

In its final order dated July 22, 2022, the Court of the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, formally rejected Criminal Miscellaneous Petition No. 7003/2022 filed under Section 439 Cr.P.C.