The Court of the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru, presided over by Smt. B.S. Jayashree, rejected the third bail petition filed by Kashif Abdullah Shaikh under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The petitioner had been arrested and remanded in connection with F.No. DRI/BZU/SIV ENQ-27/(INT NIL 2021) registered by the Directorate of Revenue Intelligence (DRI), Bengaluru Zonal Unit, for offences involving commercial quantities of contraband punishable under Sections 8(c) and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
Background and Allegations of the Prosecution
The proceedings were initiated following credible intelligence received on August 22, 2021, by the Intelligence Officer of DRI, Bengaluru, regarding the illegal transport of a large consignment of narcotic substances. Acted upon this information, DRI officials intercepted an Ashok Leyland “Dost” goods vehicle bearing registration number KA 13 C 8250 at the Hoskote Toll Plaza at approximately 1:15 AM.
A thorough search and examination of the vehicle revealed that it was loaded with blue plastic drums containing 53 concealed packets emitting a strong, pungent odor. The packets were found to contain ganja weighing a total of 122.6 kilograms, estimated at a market value of Rs. 30,65,000/-.
The prosecution alleged that the petitioner and Accused No. 1 were caught red-handed while transporting the illicit consignment from Tuni, Andhra Pradesh, to Mangaluru via Bengaluru. The vehicle was driven by Accused No. 1, with the petitioner traveling alongside him in the cabin. The contraband was seized, and both individuals were arrested and remanded to judicial custody.
Submissions of the Parties
Advocate Sri G.G.G., representing petitioner Kashif Abdullah Shaikh, submitted before the Special Court that the petitioner was innocent, had no knowledge of the hidden drugs, and was falsely implicated. Counsel argued that procedural statutory provisions under the NDPS Act were violated, search and seizure were flawed, and the prosecution failed to segregate or ascertain the actual net quantum of ganja. It was further urged that since the investigation was concluded and a final report had been filed, continued detention was unnecessary. Counsel also sought bail on grounds of parity, pointing out that a co-accused had been granted bail by the High Court.
The Special Public Prosecutor appearing for the DRI strongly opposed the bail application. The prosecution submitted that 122.6 kilograms of ganja constitutes a massive commercial quantity, attracting rigorous imprisonment of up to 20 years. The prosecution emphasized that the petitioner was traveling in a goods transport vehicle carrying hidden contraband across states, establishing joint custody and constructive knowledge. The State further highlighted that the primary supplier of the contraband remained absconding, and releasing the petitioner would pose a serious threat of witness tampering, absconding, or re-engaging in drug trafficking.
Legal Analysis and Judicial Reasoning
The Special Court framed the central point for determination as whether the petitioner established sufficient grounds for the grant of bail under Section 439 of Cr.P.C. in a third successive application.
In evaluating the nature of the contraband, the Court noted that under Ministry of Finance Notification S.O.1055(E) dated October 19, 2001, any quantity of ganja exceeding 20 kilograms is classified as a commercial quantity. Consequently, the recovery of 122.6 kilograms from the vehicle fell squarely within the commercial quantity threshold, attracting the stringent statutory bar under Section 37 of the NDPS Act.
Addressing the petitioner’s plea of non-involvement, the Court raised a fundamental question regarding why the petitioner was traveling long-distance in a commercial goods lorry alongside Accused No. 1 rather than using standard passenger transport, especially since he was neither a cleaner nor an assistant for the vehicle. The Court observed that traveling in a vehicle loaded with blue drums containing concealed drugs across state borders created strong prima facie evidence of conscious possession and joint enterprise.
The Special Court placed heavy reliance on several binding judgments of the Supreme Court of India:
- Union of India v. Mohammed Nawaz Khan (2021): The Apex Court set aside a High Court order granting bail under similar facts where the accused was traveling long-distance in a vehicle carrying commercial quantities of concealed contraband. The Supreme Court established four key evaluation criteria: (i) traveling together in the vehicle across state borders, (ii) CDR contact analysis with co-accused, (iii) commercial quantity involved, and (iv) concealment within the vehicle.
- State of M.P. v. Kajad (2001) 7 SCC 673: The Supreme Court held that under Section 37(1)(b) of the NDPS Act, negation of bail is the rule and its grant is an exception, requiring reasonable grounds to believe the accused is not guilty.
- Babua v. State of Orissa (2001) 2 SCC 566: The Apex Court observed that individual liberty must be balanced against societal interest, emphasizing that drug trafficking poses lethal societal dangers that justify pre-trial detention.
Regarding the claim of parity, the Special Court distinguished the cited High Court ruling (Sayed Rafeeq v. State), observing that parity cannot be applied mechanically when the applicant played a direct, active role in transporting a commercial quantity of contraband and was caught red-handed. The Court also noted that previous bail applications had been rejected both by the Special Court (Crl.Misc. No. 7387/2021 on September 23, 2021) and the High Court of Karnataka (Crl.P. No. 8123/2021 on January 19, 2022), and no fresh material grounds were presented.
Final Decision
The Special Court held that the petitioner failed to satisfy the mandatory dual conditions prescribed under Section 37 of the NDPS Act. Finding no new or exceptional circumstances to warrant a departure from earlier orders, the Court answered Point No. 1 in the negative.
Accordingly, Criminal Miscellaneous Petition No. 6772/2022 was rejected.