A Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) in Bengaluru has granted bail to 27-year-old Sherwin M S, who was arrested by the Cubbon Park police for alleged possession of MDMA. The order, delivered by Smt. B.S. Jayashree, the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS, centered on a critical legal interpretation regarding whether the seized quantity met the stringent “commercial quantity” threshold.

Sherwin M S, a resident of Yemalur, Bengaluru, was apprehended on October 13, 2022. The case was registered under Crime Number 104/2022 for offenses punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The Police Raid and Recovery of MDMA

According to the prosecution, the Women Police Sub-Inspector of Cubbon Park Police Station received credible information on October 13, 2022, regarding an individual selling MDMA near Siddlingaiah Circle on Cubbon Park Central Library Road. Acting on this tip, the police official obtained permission from higher authorities to conduct a raid.

The police team, along with independent witnesses and a gazetted officer, arrived at the spot and conducted a personal search of the suspect, identified as Sherwin M S. During the search, the police recovered 10 grams of MDMA. Upon interrogation, the accused allegedly revealed that he had purchased the contraband from other individuals in Bengaluru. Subsequent investigations led to the arrest of a second accused, from whom 3 grams of MDMA were seized.

Legal Arguments: The Commercial Quantity Dispute

The legal counsel for the petitioner argued that Sherwin M S was an innocent citizen with no criminal background and had been falsely implicated. A primary pillar of the defense was that the quantity seized—exactly 10 grams—should not be treated as a “commercial quantity” under the specific definitions of the Narcotic Drugs and Psychotropic Substances Act.

The prosecution strongly opposed the bail, labeling the petitioner a habitual drug dealer. They argued that Section 22(c) of the Act applies to commercial quantities and carries a rigorous punishment of 10 to 20 years of imprisonment. The state expressed concerns that if released, the accused would continue selling narcotics or abscond to avoid trial.

Judicial Interpretation of Section 2(viia) of the NDPS Act

The court’s decision hinged on the technical definition of “commercial quantity” as specified in the central government notifications. According to the Ministry of Finance Department of Revenue Notification S.O.1055(E), the threshold for MDMA to be considered a commercial quantity is 10 grams.

However, Judge B.S. Jayashree highlighted Section 2(viia) of the Narcotic Drugs and Psychotropic Substances Act, which defines “commercial quantity” as any quantity “greater than” the quantity specified in the notification. The court reasoned that since exactly 10 grams were seized, it did not satisfy the requirement of being “greater than 10 grams.”

To support this interpretation, the court cited an unreported decision by the Karnataka High Court in Ashley Braison D’Souza vs. State of Karnataka. In that case, the High Court had ruled that 10 grams of MDMA cannot be considered a commercial quantity because the law requires the amount to be larger than the specified limit. The court also referenced a similar ruling by the Orissa High Court regarding the weight thresholds of ganja.

By determining that the 10 grams of MDMA fell into the “intermediate quantity” category rather than “commercial,” the court noted that the strict restrictions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act—which makes bail nearly impossible for commercial quantities—would not apply.

Conditions for Release on Bail

The court observed that the investigation was largely complete and that the petitioner had been in judicial custody since his arrest. Taking into account that a co-accused had already been enlarged on bail, the court found it fit to grant bail under specific conditions.

The petitioner was ordered to be released upon executing a personal bond for 1,00,000 Rupees with two sureties of the same amount. The conditions include:

The petitioner must mark his attendance before the Investigating Officer once a month until the charge sheet is filed. He is prohibited from leaving the jurisdiction of the court without prior permission and must not tamper with prosecution witnesses or evidence. Furthermore, he must cooperate with the investigation, appear on all hearing dates, and refrain from committing any similar offenses while out on bail. The court warned that any breach of these conditions would lead to the immediate cancellation of his bail.