The plea for bail by Girish B., accused no. 2 in a serious narcotics case, was rejected by the XXXIII Addl. City Civil & Sessions Judge and Special Judge (NDPS) in Bengaluru, Smt. B.S. Jayashree, on August 26, 2022. The Court, in its order for Criminal Miscellaneous Petition No. 7956/2022, emphasized the stringent provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, particularly the mandate of Section 37, given the commercial quantity of MDMA and Ganja seized.
Details of the Arrest and Contraband Seizure
Girish B., S/o Basavaraj, aged 29, was arrayed as Accused No. 2 in Crime No. 135/2022 of Madiwala Police Station. He was booked under Sections 20(b), 8(c), 21(c), and 22(c) of the NDPS Act.
The prosecution’s case, as outlined in the order, stemmed from an incident on July 26, 2022. The Police Sub-Inspector (PSI) of Madiwala PS received credible information that three individuals were selling narcotic drugs near Jakkasandra Kadalekayi Mandi. A raid was conducted following proper authorization from a Higher Officer. During the apprehension and subsequent personal search in the presence of panchas, the investigating agency seized two types of contraband:
- Ganja: 1 KG 300 Grams
- MDMA: 11 Grams 45 milligrams
The prosecution argued that the seized MDMA, weighing $11.45$ grams, constituted a “commercial quantity” under the NDPS Act. The Court confirmed that the threshold for commercial quantity of MDMA is 10 grams . The total quantity seized being over this limit, the offence attracts severe punishment—rigorous imprisonment for a term between 10 and 20 years and a heavy fine.
Petitioner’s Grounds for Bail
The petitioner, represented by Advocate Smt. Laksmi N., sought bail primarily on the grounds that:
- He was innocent and falsely implicated.
- The search and seizure procedures were vitiated by inherent procedural impropriety, implying that mandatory provisions of the NDPS Act were not followed.
- The quantum of contraband seized from him was not commercial quantity (a contention the court later refuted).
- The major portion of the investigation was concluded, and his continued custodial interrogation was not warranted.
The petitioner also attempted to raise an issue regarding the timing of the arrest, producing CC TV footage of a restaurant to suggest he was arrested on July 25, 2022, even prior to the formal registration of the case. However, the Court dismissed this, noting that the footage was inconclusive and the face of the person was not visible.
Prosecution’s Opposition and the Rigour of Section 37
The prosecution strongly opposed the bail petition, asserting a prima facie case against the accused. They contended that if released on bail, the petitioner, being involved in selling drugs, might:
- Tamper with prosecution witnesses.
- Involve himself in similar offences.
- Continue to sell drugs to the younger generation, thereby ruining their careers.
The central pillar of the prosecution’s opposition, and the core of the Court’s ruling, was the application of Section 37 of the NDPS Act. This section imposes “twin conditions” that must be satisfied before bail can be granted for offences involving a commercial quantity:
- The Public Prosecutor must be given an opportunity to oppose the application.
- The Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence, AND that he is not likely to commit any offence while on bail.
Judicial Analysis and Supreme Court Precedents
In its detailed reasoning, the Court meticulously analyzed the legal position under the NDPS Act and cited several landmark judgments of the Hon’ble Apex Court to underscore the seriousness of the offence and the mandatory nature of Section 37.
Commercial Quantity Threshold
The Court first addressed the critical point of the quantity seized. It confirmed that the $11.45$ grams of MDMA was indeed a commercial quantity, as the threshold is $10$ grams. This immediately triggered the strict bar of Section 37.
Interpretation of ‘Reasonable Grounds’
Citing the Supreme Court judgment in State of Kerala Vs. Rajesh (2020), the Court reiterated that “reasonable grounds” means something more than prima facie grounds. It requires a finding of “substantial probable cause for believing that the accused is not guilty.” The Court stressed that a liberal approach in granting bail in NDPS cases is “uncalled for.”
Furthermore, referring to the case of State of MP Vs. Kajad (2001), the Judge highlighted the principle that “Negation of bail is the rule and its grant an exception” under Section 37(1)(b). The Court must be satisfied on the basis of the record that the petitioner is not guilty and is not likely to commit further offences.
Role of the Accused and Procedural Lapses
The Court also considered the Supreme Court’s decision in Union of India through NCB, Lucknow Vs. Mohammed Nawaz Khan (2021). This judgment clarified that simply because a contraband was not found on the person of the accused does not automatically absolve the court of the required scrutiny under Section 37, especially when the accused is found traveling with co-accused and commercial quantities.
Regarding the petitioner’s argument about procedural lapses, the Court noted that the non-compliance with procedures like Section 42 of the NDPS Act is a question of fact that must be decided during the trial, not at the bail stage.
Conclusion and Order
The Special Judge concluded that the twin conditions of Section 37 of the NDPS Act were not satisfied. There was prima facie material available against the petitioner regarding the possession of a commercial quantity of narcotic drug, and the counsel failed to place any material to establish that he was not in possession of the NDPS articles.
Consequently, the Court held that the petitioner had not made out sufficient grounds to be enlarged on bail.
The final order pronounced in open court was:
ORDER
The petition filed by the petitioner U/Sec.439 of Cr.P.C is hereby rejected.