Bengaluru Court Rejects Bail to Thaha Ummer in Commercial Quantity Clonazepam Smuggling Case Under NDPS Act

In a significant judicial order delivered on September 20, 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. 8757/2022. The court refused to grant regular bail to Thaha Ummer (Accused No. 1) in connection with Crime No. 48/1/11/2022 registered by the Narcotics Control Bureau (NCB), Bengaluru Zonal Unit, for offences punishable under Section 8(c) read with Section 21 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings were initiated following credible intelligence received on May 7, 2022, at around 10:30 AM by an Intelligence Officer (IO) of the NCB, Bengaluru Zonal Unit. The information indicated that a suspicious export parcel bearing waybill number 1826193810, lying at DHL Express (India) Pvt. Ltd., Kempegowda International Airport (KIA), Bengaluru, was suspected of containing Clonazepam tablets—a prohibited psychotropic substance under the NDPS Act.

Upon receiving approval from the Superintendent, NCB, the raiding team arrived at the courier facility. Inspection of the parcel—a white DHL polythene envelope dispatched purportedly by Ajmal Nanath Valiyatt from Kerala and addressed to Zainul Abid Mannan Paramban in Saudi Arabia—revealed a brown carton box labeled “purchased on Amazon.” Inside the box were six unsealed bottles of Himalaya Septilin tablets (60s). Upon opening, each bottle was found to contain 374 white tablets of Rivotril 2 (Clonazepam), totaling 2,244 tablets.

The net weight of the recovered psychotropic substance was 357 grams. The contraband was seized under a spot panchanama, and samples sent to CFSL, Hyderabad, confirmed the presence of Clonazepam.

Subsequent investigation revealed that the parcel had been booked by Accused No. 2, who worked as a salesman at Aliya Medical Shop, owned by the petitioner, Thaha Ummer. The NCB established that the petitioner had taken the identity card of Accused No. 2, forged his signature, and misused his identity documents to dispatch the contraband abroad via airways courier.

Despite receiving NCB summons on July 18, August 1, and August 10, 2022, the petitioner failed to appear. Following service of court summons, he appeared before the IO on August 24, 2022. His voluntary statement was recorded, and based on reasonable belief of his involvement in illicit drug trafficking, he was arrested on August 25, 2022, and remanded to judicial custody.

The cause title records the background of the applicant:

Thaha Ummer (Accused No. 1): Aged 38 years, son of Ummar, residing at Padikka Mannil House, Koottilangadi, Malappuram District, Kerala.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri A.V.N. urged the following grounds seeking regular bail under Section 439 Cr.P.C.:

Claim of Innocence and False Implication: The petitioner asserted that he is innocent, a law-abiding citizen, and was falsely implicated by the respondent agency.
Contention on Contraband Quantity: The defence argued that the quantity seized was less than a commercial quantity.
Investigation and Custody: Counsel submitted that the major portion of the investigation was concluded, further custodial interrogation was not warranted, and continued detention in Central Prison would ruin his career.
Procedural Non-Compliance: It was alleged that mandatory search and recovery procedures under the NDPS Act were not followed.
Surety and Local Roots: The petitioner promised to abide by all conditions imposed by the court and furnish reliable sureties.

Prosecution Objections

The NCB, represented by the Special Public Prosecutor, strongly opposed the bail petition, advancing the following objections:

Commercial Quantity Seizure: The investigating agency seized 357 grams of Clonazepam. Under statutory notifications, 100 grams constitutes a commercial quantity, thereby attracting the strict statutory rigors of Section 37(1)(b) of the NDPS Act.
Role in Smuggling and Identity Misuse: The petitioner, as owner of Aliya Medical Shop, misused his employee’s identity documents and forged signatures to ship prohibited psychotropic substances to Saudi Arabia.
Non-Cooperation and Flight Risk: The petitioner repeatedly evaded NCB summonses and appeared only after court intervention. If released on bail, there is a high risk of him absconding, tampering with forensic and documentary evidence, or re-engaging in international drug trafficking.

Judicial Analysis and Detailed Legal Reasoning

The Special Court examined the case diary, CFSL report, and rival contentions to decide Point No. 1: whether the petitioner made out sufficient grounds for regular bail.

1. Statutory Classification of Clonazepam Quantity

The court referred to Entry Sl. No. 189 of the Ministry of Finance (Department of Revenue) Notification S.O. 1055(E) dated October 19, 2001:

Small Quantity for Clonazepam: Up to 5 grams.
Commercial Quantity for Clonazepam: 100 grams or more.

Since the total recovery weighed 357 grams, Special Judge Smt. B.S. Jayashree held that the seized psychotropic substance unambiguously fell within the commercial quantity category, bringing the bail application directly under the mandatory bar of Section 37(1)(b) of the NDPS Act.

2. Mandatory Twin Conditions Under Section 37 NDPS Act and Precedents

The court emphasized that for offences involving 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, the court cited authoritative Supreme Court rulings:

Union of India v. Mohammed Nawaz Khan (Crl. Appeal No. 1043/2021, dated Sept 22, 2021): The Apex Court held that stringent parameters under Section 37 must be strictly applied to curb drug trafficking. The Supreme Court set aside a High Court bail order, ruling that arguments regarding lack of direct physical recovery do not absolve courts from the level of scrutiny required 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 cause for believing the accused is not guilty. 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, justifying detention during trial in commercial contraband matters.

3. Application of Law to Present Facts

Applying these principles, the court noted that the NCB investigation yielded strong prima facie evidence showing that the petitioner, as owner of Aliya Medical Shop, used his employee’s identity card and forged his signature to book the parcel containing 357 grams of Clonazepam tablets for international shipment.

The defence failed to place any material on record to demonstrate that the petitioner was not involved in booking the commercial quantity parcel. Finding that the statutory twin conditions under Section 37 were not satisfied, the court affirmed that pre-trial bail decisions are based on prima facie evaluations and do not constitute a final determination of guilt or innocence, which remains subject to trial.

Final Order

Answering Point No. 1 in the negative, Special Judge Smt. B.S. Jayashree formally rejected the bail petition on September 20, 2022:

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