In a notable judicial order passed on January 3, 2023, 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. 12439/2022. The court enlarged Syed Nasrulla (Accused No. 1) on regular bail in connection with Crime No. 384/2022 registered by the RT Nagar Police Station. The petitioner was facing prosecution for offences punishable under Section 22(b) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings commenced following a report submitted by the Police Sub-Inspector (PSI) of RT Nagar Police Station. According to the prosecution case, on December 14, 2022, at approximately 6:30 PM, the complainant PSI received credible information while present at the police station that a person carrying contraband was attempting to sell it to the public at Sultanpalya Panipuri Ground within the jurisdictional limits of RT Nagar Police Station.

After recording the information, the PSI notified the Assistant Commissioner of Police (ACP) and obtained formal permission to conduct a raid. Accompanied by police staff and independent panchas, the PSI arrived at the location and mounted surveillance. The police team identified a person selling articles to the public, surrounded him, and apprehended him. Upon enquiry, he disclosed his identity as Syed Nasrulla, aged 41 years, son of Syed Khader, residing at No. 10/1, 2nd Main, 4th Cross, Dinnur Main Road, RT Nagar, Bengaluru.

The suspect stated that he was in possession of MDMA, which he had purchased from a person in Kammanahalli. A personal search was conducted in the presence of a gazetted officer, yielding 9.50 grams of MDMA. The police seized the contraband under a spot seizure panchanama, prepared a detailed report, and submitted it to the Station House Officer (SHO). Based on this report, Crime No. 384/2022 was registered under Section 22(b) of the NDPS Act. The petitioner was arrested, produced before the jurisdictional court, and remanded to judicial custody.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Smt. Sofiya Mansoor presented several grounds seeking his enlargement on regular bail:

• False Implication: It was submitted that the petitioner is innocent, a law-abiding citizen, and was falsely planted in the case by the complainant police without having any knowledge of the alleged contraband.
• Procedural Non-Compliance: The defence contended that mandatory procedural safeguards under the NDPS Act were not complied with during the search and recovery process.
• Non-Commercial Quantity: Defence counsel argued that the seized quantity of 9.50 grams of MDMA falls strictly below the commercial quantity threshold.
• Custody and Residence Verification: It was urged that the petitioner is a permanent resident at the address stated in the cause title, promised to abide by all court conditions, and was ready to furnish adequate sureties for his due appearance.

Prosecution Objections

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

• Recovery of Contraband: Investigating authorities seized 9.50 grams of MDMA directly from the possession of the accused under a spot panchanama following a personal search in the presence of a gazetted officer.
• Severity of Punishment: The alleged offence carries rigorous imprisonment for a term that may extend up to 10 years along with a fine.
• Risk of Absconding: The prosecution contended that a prima facie case exists establishing that the petitioner is a habitual drug dealer who, if released on bail, would abscond, tamper with prosecution evidence, and continue selling narcotic drugs.

Judicial Analysis and Detailed Legal Reasoning

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

1. Statutory 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 9.50 grams of MDMA recovered in this case exceeds 0.5 grams but sits just below the 10-gram commercial threshold, placing it explicitly in the category of an intermediate quantity.

2. Non-Applicability of Section 37 Rigors and Precedent Analysis

The Special Judge emphasized that when the seized contraband is less than a commercial quantity, the strict statutory restrictions on bail under Section 37 of the NDPS Act do not apply. Consequently, the criteria for considering bail revert to standard principles under the regular Cr.P.C. framework, unless exceptional adverse circumstances are established by the prosecution.

To reinforce this legal principle, Special Judge Smt. B.S. Jayashree relied on the binding Supreme Court precedent in Birbal Prasad v. State of Bihar [(2018) 11 SCC 488], where the Apex Court granted bail in a non-commercial contraband case where the accused had no prior criminal antecedents. Holding that the legal principles applied directly to the present facts, the court ruled that the petitioner’s bail plea deserved favorable consideration.

3. Investigation Progress and Custodial Necessity

The court observed that a major portion of the investigation had concluded since the incriminatory contraband was seized. The alleged offence under Section 22(b) is not punishable with death or imprisonment for life, rendering further custodial interrogation unnecessary. Furthermore, the court held that the prosecution’s apprehensions regarding flight risk or trial delay could be effectively compensated by imposing stringent bail conditions.

It remains a settled principle of criminal jurisprudence that an order granting or refusing bail 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 Bail 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, Syed Nasrulla, is enlarged on bail in Crime No. 384/2022 of RT Nagar 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 I.O for investigation.
5. He shall not commit similar offence or any offence while on bail.
6. He shall furnish his photo ID proof and 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.