The plea for bail filed by Akmal Baba @ Baba @ Billi Baba, the accused in a significant Narcotic Drugs and Psychotropic Substances (NDPS) Act case, was emphatically rejected by the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS) in Bengaluru on March 22, 2024. The court, presided over by Smt. B.S. Jayashree, LL.M., found insufficient grounds to grant bail under the stringent provisions of the NDPS Act, particularly Section 37, given the commercial quantity of the contraband seized.
The bail petition, filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.), sought the release of the petitioner, accused No. 1, in connection with Crime No. 183/2023 registered by the Devarajeevanahalli Police Station. The charges against the petitioner include offences punishable under Section 22(c) and Section 27B of the NDPS Act.
The Allegations and Seizure
The case against Akmal Baba stems from a credible information received by the Police Sub-Inspector (PSI) of Devarajeevanahalli P.S. on August 3, 2023, around 5:50 p.m. The information suggested that a person was actively selling drugs near the Urdu school compound, Tank Mohalla, D J Halli, Bengaluru, while sitting on a two-wheeler.
Upon receiving permission from the Assistant Commissioner of Police (ACP), the PSI, along with staff and panchas, conducted a raid. The suspected person, later identified as Akmal Baba, was apprehended at the spot. A personal search was conducted, leading to the seizure of 15 grams of ecstasy tablets under a formal mahazar (seizure memo). Following this, a detailed report was prepared, and a case was registered. The accused was subsequently produced before the court and remanded to judicial custody (J.C.).
Commercial Quantity Threshold: The Crucial Factor
A central argument against granting bail, highlighted by the prosecution and upheld by the court, was the quantum of the drug seized. The prosecution contended that the 15 grams of ecstasy tablets seized constitute a commercial quantity, an assertion that significantly escalates the gravity of the offence and triggers the restrictive conditions for bail under Section 37 of the NDPS Act.
The court referenced the Ministry of Finance Department of Revenue Notification S.O.1055(E) dated October 19, 2001, which specifies the threshold for narcotic and psychotropic substances. According to Sl. No. 134 of this notification, the narcotic drug MDMA (Methylenedioxymethamphetamine) has a small quantity limit of 0.5 grams and a commercial quantity limit of 10 grams. Since the quantity seized from Akmal Baba was 15 grams, the court definitively established that the seized substance falls under the category of commercial quantity.
Offences involving commercial quantities under Section 22(c) of the NDPS Act are punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine.
The Defense Arguments and Judicial Response
The counsel for the petitioner, Sri TGS, advanced several grounds for bail. These included the standard claims of innocence, false implication, and the petitioner being a law-abiding, permanent resident ready to abide by any court conditions, including offering surety.
Crucially, the defense argued that the procedure contemplated under the NDPS Act was not followed during the recovery, specifically claiming that a test kit was not taken to the spot and no field test was conducted. The defense also pointed out that the petitioner has no bad antecedents and argued that there are no reasonable grounds to believe the petitioner has committed the alleged offences.
Addressing the defense’s arguments, the court noted that the contention regarding the absence of a field test is a matter to be adjudicated at the time of a full-fledged trial. Importantly, the court confirmed that the Forensic Science Laboratory (FSL) report is available and it clearly indicates that the contraband seized from the accused is MDMA. Furthermore, the medical report confirmed that the accused had consumed contraband, specifically Tetra Hydro Cannabinoids, though the seizure itself was MDMA. The court concluded that, at this stage, the FSL report and the act of seizure provide prima facie material against the petitioner regarding the possession of a narcotic drug.
The Iron Grip of Section 37 of the NDPS Act
The core of the court’s rejection rests on the mandatory limitations imposed by Section 37 of the NDPS Act on the grant of bail. This section places a high burden on the accused in cases involving commercial quantities.
Section 37(1)(b) states that a person accused of an offence under Section 19, Section 24, Section 27A, or of an offence involving commercial quantity shall not be released on bail unless two specific conditions are satisfied:
- The court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence.
- The court is satisfied that the accused is not likely to commit any offence while on bail.
The Judge cited significant rulings by the Hon’ble Supreme Court of India to reinforce the application of Section 37.
- In the case of State of Kerala Vs. Rajesh (2020), the Apex Court observed that “reasonable grounds” means something more than prima facie grounds and contemplates a “substantial probable cause” for believing the accused is not guilty. It also warned against a “liberal approach” in the matter of bail under the NDPS Act, stating it is “uncalled for.”
- In State of M.P. Vs. Kajad (2001), the Supreme Court unequivocally held that “Negation of bail is the rule and its grant an exception” under Section 37(1)(b)(ii).
- Most recently, the court cited NCB V/s Mohit Agarwal (2022), where the Supreme Court observed that the “narrow parameters of bail available under Section 37 of the Act, have not been satisfied”. The judgment further stressed that the length of custody, the filing of the charge sheet, or the commencement of trial are not by themselves persuasive grounds for granting relief under Section 37 of the NDPS Act.
The Conclusion and Order
Applying the binding principles of law, the court held that the counsel for the petitioner failed to place any material before the court to suggest that the accused was not in possession of the NDPS article at the time of his apprehension and search. Given the prima facie material regarding the possession of a commercial quantity of a narcotic drug, the court could not satisfy the twin conditions of Section 37.
The court concluded that the petitioner had not made out any grounds to entertain his plea for bail.
The final ORDER was:
The petition filed by the petitioner U/Sec.439 of Cr.P.C is hereby rejected.
The ruling underscores the rigorous standard and restrictive nature of bail provisions under the NDPS Act, particularly when the offence involves a commercial quantity of contraband. The judgment reinforces the legislative intent to impose deterrent punishments for illicit trafficking and the necessity for courts to meticulously examine the evidence against the twin conditions before granting bail. The accused, Akmal Baba, will remain in judicial custody as the investigation and subsequent trial proceed.