In a significant ruling regarding the interpretation of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, a Special Court in Bengaluru has granted bail to an accused, Bharath Avinash, who was arrested by the Narcotics Control Bureau (NCB) for the alleged possession of Lysergic Acid Diethylamide (LSD). The court ruled that the seized quantity of 0.10 grams of LSD, while equal to the notified commercial quantity threshold, did not meet the statutory definition of “commercial quantity” as stipulated under Section 2(viia) of the NDPS Act.
The order was passed on August 29, 2023, by the XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Smt. B.S. Jayashree, allowing the second bail petition filed by the petitioner, Bharath Avinash, S/o Jayaraman.
The Allegations and Seizure
The case, registered as Cr. No. 48/1/25/2023 by the NCB, Bengaluru Zonal Unit (BZU), involves offences punishable under Sections 8(c), 22(c), 27, and 28 of the NDPS Act.
According to the prosecution, the Investigating Officer (IO) received a tip-off on June 20, 2023, regarding a postal shipment suspected to contain LSD, addressed to the consignee, Bharath Avinash, in Jeevanbimanagar, Bengaluru. A team was constituted, and a raid was conducted at the Vimanapura Post Office. Upon scrutinizing and opening the parcel, 11 blots weighing 0.10 grams of LSD were allegedly seized. The substance tested positive for LSD, a psychotropic substance.
The NCB subsequently searched the consignee’s house, seized a dummy parcel, and recorded the statement of the petitioner, Bharath Avinash, a young person working in an IT company in Bangalore, leading to his arrest.
Petitioner’s Argument and The Core Legal Question
The counsel for the petitioner, Sri. Vishwanath K. S., vehemently argued that the seized quantity of 0.10 grams of LSD was not a commercial quantity but fell below the statutory criteria. The defence contended that since the quantity was not commercial, the stringent conditions for bail imposed by Section 37 of the NDPS Act—which essentially places the burden on the accused to prove their innocence—would not be applicable.
The defense highlighted that the petitioner is a young man without any criminal antecedents, is employed in the IT sector, and has deep roots in society, being a permanent resident of Tamil Nadu currently working in Bengaluru. They argued that the recovery was already made and no further custodial interrogation was necessary.
The Court’s Crucial Interpretation of ‘Commercial Quantity’
The prosecution strongly opposed the bail plea, asserting that 0.1 gram of LSD is indeed the commercial quantity as per the Ministry of Finance notification S.O. 1055(E) dated October 19, 2001 (Sl. No. 133). Since the seized amount was 0.10 grams, they argued it qualified as commercial quantity, attracting a rigorous imprisonment term that may extend up to 20 years.
However, the Special Judge undertook a careful analysis of the definition provided in the NDPS Act itself. The court referenced Section 2(viia) of the Act, which defines “commercial quantity” as “any quantity greater than the quantity specified by the Central Government, by notification in the Official Gazette.”
The court pointed out that the notification specifies “0.1 gram” as the commercial quantity threshold. Citing established judicial precedents, including an unreported decision of the Hon’ble High Court in Crl. Petition No. 849/2013 and the ruling in Anil Kumar Das Vs. State of Orissa (2015 SCC online Ori 361), the Special Judge emphasized the term “greater than.”
Applying this principle, the court observed: “In view of sec.2(viia) the 0.10 grams of LSD which is seized in the present case could not be termed as commercial quantity. Anything equal or less than 1 is gram as gram signifies singularity. Hence it should be 0.1 gram. 0.1 gram is equal to 0.10 gram.”
The court concluded that 0.10 grams, being equal to the specified commercial quantity (0.1 gram), is not “greater than” it as required by the statutory definition. Therefore, the restrictive provisions of Section 37 of the NDPS Act were held to be inapplicable in this case, paving the way for the grant of regular bail.
Conditions for Bail
Given that the major portion of the investigation was deemed concluded and further custodial interrogation was not warranted, the court allowed the petition.
The petitioner, Bharath Avinash, was enlarged on bail on executing a personal bond for a sum of Rs. 1,00,000/- with two sureties for the like sum, subject to stringent conditions:
- The petitioner must attend before the concerned Investigating Officer once a month, preferably on the first Monday, between 10:00 am and 2:00 pm, until the charge sheet is filed.
- He shall not leave the court’s jurisdiction without prior permission.
- He shall not tamper with the witnesses or abscond.
- He must cooperate with the investigation and shall not commit any similar or other offense while on bail.
The court explicitly warned that any breach of these conditions would result in the cancellation of his bail. This judgment serves as a crucial reminder of the importance of precise legal terminology in criminal statutes, especially concerning the demarcation between small, intermediate, and commercial quantities under the NDPS Act.