Kerala Resident Fasil M B Gets Bail in NDPS Case: Judicial Finding of Intermediate Quantity Overrides Section 37 Rigors
In a key ruling emphasizing the crucial role of forensic evidence in narcotics cases, the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, granted bail to accused Fasil M B, a resident of Thrissur, Kerala. The order, delivered on March 20, 2024, in Criminal Miscellaneous Petition No. 2656/2024, highlighted that the rigorous conditions for bail under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act were not applicable because the seized drug, upon forensic analysis, was reclassified as an intermediate quantity of Methamphetamine, not the ‘commercial quantity’ of MDMA initially reported.
The Initial Arrest and Charges
Fasil M B, son of Basheer M K, was arrested in connection with Cr. No. 304/2023 registered by the Govindapura Police Station for offenses punishable under Sections 8(c) and 22(c) of the NDPS Act. The case originated from a raid conducted on November 10, 2023, following credible information received by the Police Inspector.
The prosecution alleged that Fasil M B was apprehended near the Indian Public School, Nagawara Village, Bengaluru, selling narcotic drugs. Upon personal search, the police claimed to have seized 30.5 grams of MDMA from the accused. Based on this initial seizure and the perceived quantity of MDMA—a highly potent psychotropic substance—the accused was arrested and subsequently remanded to judicial custody (JC). The offense was initially considered to be punishable with rigorous imprisonment for a term up to 20 years, attracting the strict provisions of Section 37 of the NDPS Act, which places a heavy burden on the accused to prove their innocence before being granted bail.
The Petitioner’s Plea and Forensic Twist
Fasil M B, through his counsel Sri. AR., Advocate, filed a bail petition under Section 439 of Cr.P.C., asserting his innocence and claiming false implication. His defense centered on the procedural non-compliance during recovery and, more importantly, the Forensic Science Laboratory (FSL) report.
The FSL report, received during the pendency of the matter, revealed a critical finding: the sample sent for analysis answered positive for the presence of Methamphetamine but negative for the presence of MDMA.
Judicial Analysis of Quantity and Section 37
This forensic finding fundamentally altered the nature and gravity of the offense for the purpose of bail. The Court meticulously considered the notification issued by the Ministry of Finance, Department of Revenue, which specifies the small and commercial quantities for narcotic drugs and psychotropic substances (S.O.1055(E) dated 19.10.2001).
The Court noted the following key metric for Methamphetamine (Sl. No. 159):
- Small Quantity: 2 grams
- Commercial Quantity: 50 grams
Since the FSL report confirmed the seized substance was Methamphetamine and the quantity was 30.5 grams, the Court categorically held that the seized quantum fell squarely within the intermediate quantity—a quantity greater than small but less than commercial.
The learned Judge then cited the precedent set by the Hon’ble Apex Court in Birbal Prasad Vs. State of Bihar (2018 11 SCC 488), which held that bail should be considered when the quantity involved is non-commercial.
Crucially, the Court concluded that when the quantity is less than the commercial quantity, the rigors of Section 37 of the NDPS Act will not attract. Consequently, the bail application had to be considered under the normal bail factors applicable under regular statutes, unless the prosecution pointed towards exceptional circumstances. The prosecution’s apprehension that Fasil M B might abscond or continue drug selling was deemed insufficient to justify continued custody, especially since the major portion of the investigation was complete, the charge sheet was filed, and further custodial detention was deemed unnecessary.
Conditions for Release
Answering the point for consideration in the affirmative, the Court ordered the bail of Fasil M B. He was directed to be enlarged on bail upon executing a personal bond for a sum of Rs. 1,00,000/- with two sureties for the like sum, subject to stringent conditions aimed at ensuring his cooperation with the trial process and preventing recidivism:
- He shall not leave the jurisdiction of the court without prior permission.
- He shall not tamper with the witnesses or abscond.
- He shall not commit a similar offense or any offense while on bail.
- He shall furnish his photo ID proof and local address proof document before the court, along with the photo ID proof of his sureties.
- He shall appear before the court on all hearing dates.
The order concluded with a clear warning that any breach of the imposed conditions would automatically entail the cancellation of his bail. This decision serves as a significant legal reminder that forensic evidence is paramount in NDPS cases and can decisively determine the applicability of the Act’s most stringent provisions.
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