Bengaluru Court Rejects Bail to Sameer Pasha in Commercial Quantity MDMA Seizure Case Under NDPS Act

In a significant judicial order delivered on August 8, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., rejected the bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 7317/2022. The court refused to grant regular bail to Sameer Pasha (Accused No. 1) in connection with Crime No. 161/2022 registered by the Byatarayanapura Police Station for offences punishable under Section 22(c) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings were set into motion following a report submitted by the Police Sub-Inspector (PSI) of Byatarayanapura Police Station. According to the prosecution, on July 27, 2022, at approximately 1:00 PM, the complainant PSI received credible information while present at the police station that a person was illegally selling MDMA to the public near Kinko Junction, NICE Road, Mysore Road, Bengaluru.

After intimating the credible information to his superior officer and obtaining permission to conduct a raid, the PSI proceeded to the spot with his staff and independent panchas. The police team intercepted and apprehended the suspect at the scene. Upon enquiry, he disclosed his identity as Sameer Pasha, aged 21 years, residing at No. 25, 4th Cross, Pipeline Road, Shamanna Garden, Mysore Road, Bengaluru.

A personal search of the accused resulted in the recovery and seizure of 12 grams of MDMA. A detailed spot seizure mahazar was drawn, the accused was arrested, and a report was presented before the Station House Officer (SHO), leading to the formal registration of Crime No. 161/2022 under Section 22(c) of the NDPS Act.

Arguments Submitted by Defence Counsel

Learned counsel appearing for the petitioner vehemently argued for the grant of regular bail on the following grounds:

False Implication: It was contended that the petitioner is innocent, a law-abiding citizen, and has been falsely implicated in the case by the respondent police.
Contention on Quantity: The defence asserted that the quantity seized from the possession of the accused was less than commercial quantity.
Investigation and Custody: Counsel argued that the major portion of the investigation had been concluded, further custodial interrogation was not warranted, and continued detention in Central Prison alongside hardened criminals would ruin the young petitioner’s career.
Procedural Non-Compliance: It was alleged that mandatory procedures contemplated under the NDPS Act were not followed during search and recovery.
Surety and Cooperation: The petitioner assured the court that being a permanent resident at the cause title address, he was ready to abide by any conditions and furnish reliable sureties.

Prosecution Objections

The Public Prosecutor strongly opposed the bail petition, advancing the following arguments:

Commercial Quantity Seizure: The investigating agency seized 12 grams of MDMA directly from the personal custody of the applicant. Under statutory specifications, 10 grams of MDMA constitutes a commercial quantity, thereby attracting the strict provisions of Section 22(c) of the Act.
Severity of Sentence: The offence carries a mandatory minimum sentence of 10 years rigorous imprisonment, which may extend up to 20 years, along with a fine.
Public Interest and Risk of Recidivism: The prosecution submitted that the investigation was pending and expressed grave apprehension that if released on bail, the petitioner would re-engage in selling drugs to the younger generation, tamper with prosecution witnesses, and abscond.

Judicial Analysis and Detailed Reasoning

The Special Court examined the prosecution papers and rival contentions to decide Point No. 1: whether the petitioner made out sufficient grounds for bail.

1. Classification of MDMA Quantity

The court referred to Notification S.O.1055(E) dated October 19, 2001, issued by the Ministry of Finance (Department of Revenue). Under Entry Sl. No. 134:

Small Quantity for MDMA: Up to 0.5 grams.
Commercial Quantity for MDMA: 10 grams or more.

Since the quantity seized from the petitioner weighed 12 grams, the court conclusively established that it constituted a commercial quantity, bringing the bail application directly under the rigorous limitations of Section 37(1)(b) of the NDPS Act.

2. Legal Standard Under Section 37 of the NDPS Act and Precedents

The court emphasized that for commercial quantities, Section 37 imposes mandatory twin conditions: bail cannot be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.

To reinforce this legal standard, Special Judge Smt. B.S. Jayashree referred to several authoritative Supreme Court precedents:

Union of India v. Mohammed Nawaz Khan (Crl. Appeal No. 1043/2021, dated Sept 22, 2021): The Apex Court highlighted that stringent parameters are prescribed under the NDPS Act to curb drug trafficking. The Supreme Court set aside a High Court bail order, observing that findings on lack of direct physical possession or procedural arguments under Section 42 do not absolve courts from rigorous scrutiny under Section 37(1)(b)(ii).
State of Kerala v. Rajesh [(2020) 12 SCC 122]: The Supreme Court held that “reasonable grounds” means something more than prima facie grounds and requires substantial probable causes for believing the accused is not guilty. The Apex Court cautioned that liberal approaches in granting bail under the NDPS Act are completely uncalled for.
State of M.P. v. Kajad [(2001) 7 SCC 673]: The Supreme Court affirmed that under Section 37(1)(b)(ii), negation of bail is the rule and its grant an exception.
Babua v. State of Orissa [(2001) 2 SCC 566]: The Apex Court ruled that individual liberty must be balanced against societal interest. Given the lethal impact of drug trafficking on society, keeping accused persons behind bars during trial is justified when prima facie material exists.

3. Application of Law to Present Facts

Applying these dictums, the court noted that 12 grams of MDMA was seized directly from the petitioner under a spot panchanama, demonstrating conscious possession. The defence failed to place any material on record to demonstrate that the petitioner was not in possession of the contraband at the time of search and apprehension.

Finding prima facie material establishing the petitioner’s involvement in a commercial quantity drug offence, the court held that the mandatory conditions under Section 37 were not satisfied. It is well-settled that an order refusing or granting bail does not amount to a final determination of guilt, which remains subject to full-fledged trial.

Final Order

Answering Point No. 1 in the negative, Special Judge Smt. B.S. Jayashree formally rejected the bail petition on August 8, 2022:

The petition filed by the petitioner, Sameer Pasha, under Section 439 of Cr.P.C. is hereby rejected.