Judicial Relief Granted Due to Lack of Recovery Evidence Against Alleged Supplier

In a significant judicial order delivered on November 9, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., allowed the bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 9495/2022. The court enlarged Umraz Basha alias Laddoo (Accused No. 2) on regular bail in connection with Crime No. 268/2022 registered by the K.G. Halli Police Station. The petitioner was facing prosecution for offences punishable under Sections 8(c) and 22(c) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985, Section 5 of the Registration of Foreigners Act, 1939, and Section 14 of the Foreigners Act, 1946.

Prosecution Allegations and Procedural History

The criminal proceedings commenced following a report submitted by the Police Inspector (PI) of K.G. Halli Police Station. According to the prosecution case, on August 2, 2022, at approximately 12:00 PM, the complainant PI received credible information indicating that a person was in possession of MDMA crystals and selling them to customers near Ambedkar Park, Pillanna Garden, 4th Main, 3rd Stage, within the territorial limits of K.G. Halli Police Station, Bengaluru.

After notifying superior officers and obtaining permission, the PI led a raiding team accompanied by independent panchas and staff to the spot, where they intercepted and apprehended Accused No. 1. A personal search of Accused No. 1 yielded a bag containing 13 grams of MDMA crystals and 80 Ecstasy tablets. The police also seized a digital electronic weighing scale, a Vivo mobile phone, a Redmi mobile phone, Rs. 15,100 in cash, and a Chevrolet car under a detailed spot seizure mahazar. Accused No. 1 was arrested and remanded to judicial custody, and Crime No. 268/2022 was registered.

During interrogation, Accused No. 1 alleged that the seized contraband had been supplied to him by Umraz Basha alias Laddoo. Based solely on this disclosure statement, investigating authorities arrested Umraz Basha on September 14, 2022—more than a month after the initial seizure.

The cause title captures the personal details of the petitioner:

• Umraz Basha alias Laddoo (Accused No. 2): Aged 23 years, son of late Imtiyaz Basha, residing at No. 68/1, 3rd Cross, 2nd Main, Muslim Colony, Arabic College Post, K.G. Halli, Bengaluru.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri C.B.O. presented several grounds seeking enlargement on regular bail:

• Absence of Recovery and False Implication: The petitioner submitted that he was completely innocent and falsely implicated based on the uncorroborated statement of Accused No. 1. No contraband, incriminating articles, or prohibited substances were recovered during his house search or personal search upon arrest.
• Procedural Non-Compliance: The defence argued that mandatory statutory procedures governing search and seizure under the NDPS Act were not complied with, creating severe doubts regarding the investigation.
• Delay in Arrest: It was highlighted that the petitioner was arrested on September 14, 2022, over a month after the primary seizure from Accused No. 1 on August 2, 2022.
• Custody and Local Roots: The defence submitted that the major portion of the investigation was complete, custodial interrogation was no longer required, and being a permanent resident at the cause title address, the petitioner promised to abide by all court conditions and furnish adequate sureties.

Prosecution Objections

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

• Commercial Quantity Seizure: The investigating agency seized 13 grams of MDMA and 80 Ecstasy tablets in the case, which constitutes a commercial quantity under statutory notifications.
• Role as Contraband Supplier: The prosecution contended that the petitioner was the direct supplier who provided the commercial quantity of MDMA to Accused No. 1 for public sale.
• Severity of Sentence: The alleged offences carry a mandatory minimum sentence of 10 years rigorous imprisonment, which may extend up to 20 years, along with a fine.
• Risk of Absconding: The prosecution argued that if released on bail, the petitioner would tamper with prosecution witnesses, commit similar drug offences, and frustrate the ongoing investigation.

Judicial Analysis and Detailed Legal Reasoning

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

The court noted that the 13 grams of MDMA seized from Accused No. 1 falls into the commercial quantity category.

2. Distinction Between Primary Accused and Alleged Supplier Without Recovery

Special Judge Smt. B.S. Jayashree made a critical judicial distinction when evaluating the applicability of Section 37 of the NDPS Act:

• Accused No. 1 was apprehended at the spot on August 2, 2022, with direct physical possession of 13 grams of MDMA.
• The petitioner (Umraz Basha) was arrested over a month later, on September 14, 2022, solely on the basis of a voluntary statement made by Accused No. 1.
• Crucially, during both the personal search and house search conducted by investigating officers at the time of the petitioner’s arrest, zero contraband was recovered from his possession or premises.
• The court observed that at this stage, the investigating agency had not collected independent corroborative material or evidentiary links demonstrating that the petitioner had supplied the contraband to Accused No. 1.
• The court held that the allegation of supply remains a matter to be probed during trial. In the absence of recovery or direct connecting material, keeping the petitioner in continued pre-trial detention was unwarranted, and prosecution apprehensions could be secured through stringent bail conditions.

It remains a well-settled principle of criminal jurisprudence that an order deciding a bail application at the pre-trial stage is purely a procedural determination and does not amount to a final determination of the accused person’s guilt or innocence, which remains subject to full-fledged trial.

Final Order and Imposed Conditions

Answering Point No. 1 in the affirmative, Special Judge Smt. B.S. Jayashree allowed the petition filed under Section 439 Cr.P.C. and passed the following order:

The petition filed by the petitioner under Section 439 of Cr.P.C. is hereby allowed. The petitioner, Umraz Basha alias Laddoo, is enlarged on bail in Crime No. 268/2022 of K.G. Halli Police Station on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties for the like sum, subject to the following conditions:

1. The petitioner shall give attendance before the concerned Investigating Officer once a month, preferably on the first Monday of every month between 10.00 AM and 2.00 PM, till filing of charge sheet or further orders, whichever is earlier.
2. He shall not leave the jurisdiction of this court without prior permission.
3. He shall not tamper with the witness or abscond.
4. He shall co-operate with the Investigating Officer for investigation.
5. He shall not commit a similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and local address proof document before the court along with photo ID proof of his sureties.
7. He shall appear before the court on all hearing dates.
8. Breach of any of the conditions by the petitioner would entail cancellation of bail.