In a significant judicial order delivered on September 20, 2022, the XXXIII Additional City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, Smt. B.S. Jayashree, LL.M., rejected the bail petition filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 8872/2022. The court refused to grant regular bail to Shaik Jihid (Accused No. 1) in connection with Crime No. 268/2022 registered by the Kadugondanahalli (KG) Police Station for offences punishable under Sections 8(c) and 22(c) of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

Prosecution Allegations and Procedural History

The criminal proceedings were set into motion following a raid led by the Inspector of Police, City Crime Branch (CCB), Women & Narcotics Wing, Bengaluru. According to the prosecution case, on August 2, 2022, the CCB Inspector received credible intelligence that an individual was selling prohibited MDMA crystals to the public for illegal financial gain near Ambedkar Park, 4th Main, Pillanna Garden 3rd Phase, Bengaluru.

After confirming the information, the Inspector formed a raiding team comprising police staff and independent panchas, arriving at the location around 12:00 PM. The police intercepted and apprehended the suspect, who disclosed his identity as Shaik Jihid, aged 23 years, residing at No. 427-1, near Ambedkar Park, Pillanna Garden 3rd Stage, Arabic College Post, Bengaluru.

During preliminary interrogation, the accused stated that he purchased the MDMA from an individual named Umraz alias Laddu at Rs. 3,000 per gram and sold it to IT/BT employees and college students at prices ranging between Rs. 8,000 and Rs. 10,000 per gram. The Assistant Commissioner of Police (ACP) was summoned to the scene, and a personal search was conducted in his presence as a gazetted officer.

The search yielded 13 grams of MDMA crystals valued at Rs. 1,30,000, along with 10 zip-lock plastic covers, an electronic weighing scale, and a keypad mobile phone. The contraband and items were seized under a spot mahazar, and the accused was arrested. A report was submitted to the Station House Officer of Kadugondanahalli Police Station, forming the basis to register Crime No. 268/2022 under Sections 8(c) and 22(c) of the NDPS Act.

Arguments Submitted by Defence Counsel

Appearing on behalf of the petitioner, learned advocate Sri N.S.M. presented the following grounds seeking regular bail under Section 439 Cr.P.C.:

• Claim of Innocence and False Implication: The petitioner asserted that he is an innocent, law-abiding citizen who had been falsely implicated in the case by the respondent police.
• Quantity Contention: The defence argued that the quantity seized from the possession of the accused was less than a commercial quantity.
• Investigation Progress: Counsel contended that a major portion of the investigation had concluded, further custodial interrogation was not required, and continued detention in Central Prison would ruin his career alongside hardened criminals.
• Procedural Non-Compliance: It was alleged that mandatory search and recovery procedures under the NDPS Act were not followed by the raiding team.
• Surety and Cooperation: The petitioner promised to abide by all conditions imposed by the court and furnish reliable sureties for his regular appearance.

Prosecution Objections

The Public Prosecutor strongly opposed the bail petition, advancing the following arguments:

• Commercial Quantity Seizure: Investigating authorities recovered 13 grams of MDMA crystals directly from the personal search of the applicant in the presence of a gazetted officer (ACP). Under statutory specifications, 10 grams of MDMA constitutes a commercial quantity, thereby attracting the strict statutory bar of Section 37(1)(b) of the NDPS Act.
• Severity of Sentences: The alleged offence involves commercial quantity drug peddling punishable with rigorous imprisonment for a term which shall not be less than 10 years and may extend up to 20 years, along with a fine.
• Public Interest and Risk of Recidivism: The prosecution submitted that the investigation was pending and expressed grave apprehension that if released on bail, the petitioner would tamper with prosecution witnesses, re-engage in selling synthetic drugs to youth and IT professionals, and abscond.

Judicial Analysis and Detailed Legal Reasoning

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

1. 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.

Since the total quantity seized directly from the petitioner weighed 13 grams, Special Judge Smt. B.S. Jayashree conclusively established that it constituted a commercial quantity, bringing the bail application directly under the rigorous limitations of Section 37(1)(b) of the NDPS Act.

2. Mandatory Twin Conditions Under Section 37 NDPS Act and Precedents

The court emphasized that for offences involving commercial quantities, Section 37 imposes mandatory twin conditions: bail cannot be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.

To reinforce this legal standard, the Special Judge referred to several landmark Supreme Court rulings:

• Union of India v. Mohammed Nawaz Khan (Crl. Appeal No. 1043/2021, dated Sept 22, 2021): The Apex Court highlighted that stringent parameters are prescribed under the NDPS Act to curb drug trafficking. The Supreme Court set aside a High Court bail order, observing that findings on lack of direct physical possession or procedural arguments under Section 42 do not absolve courts from rigorous scrutiny under Section 37(1)(b)(ii).
• State of Kerala v. Rajesh [(2020) 12 SCC 122]: The Supreme Court held that “reasonable grounds” means something more than prima facie grounds and requires substantial probable causes for believing the accused is not guilty. The Apex Court cautioned that liberal approaches in granting bail under the NDPS Act are completely uncalled for.
• State of M.P. v. Kajad [(2001) 7 SCC 673]: The Supreme Court affirmed that under Section 37(1)(b)(ii), negation of bail is the rule and its grant an exception.
• Babua v. State of Orissa [(2001) 2 SCC 566]: The Apex Court ruled that individual liberty must be balanced against societal interest. Given the lethal impact of drug trafficking on society, keeping accused persons behind bars during trial is justified when prima facie material exists.

3. Application of Law to Present Facts

Applying these dictums, the court noted that 13 grams of MDMA crystals, along with an electronic weighing scale and zip-lock covers, were seized directly from the personal search of the petitioner under a spot panchanama, establishing conscious possession and commercial drug peddling. The defence failed to place any material on record to demonstrate that the petitioner was not in possession of the contraband at the time of search and apprehension.

Finding strong prima facie material establishing the petitioner’s involvement in a commercial quantity drug offence, the court held that the mandatory conditions under Section 37 were not satisfied. It remains a settled principle of law that an order refusing or granting 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 Order

Answering Point No. 1 in the negative, Special Judge Smt. B.S. Jayashree formally rejected the bail petition on September 20, 2022:

The petition filed by the petitioner, Shaik Jihid, under Section 439 of Cr.P.C. is hereby rejected.