In a significant judicial order passed on September 19, 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. 8341/2022. The court refused to grant regular bail to Sinu (Accused) in connection with F.No.DRI/BZU/S-IV/ENQ-NIL(INT-03) 2022, investigated by the Directorate of Revenue Intelligence (DRI), Zonal Unit, Bengaluru. The petitioner faces prosecution for offences punishable under Sections 8(c) read with Sections 21, 23, 28, and 29 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.
Prosecution Allegations and Investigation Details
The criminal law was set into motion following a intelligence-based operation carried out by officers of the Directorate of Revenue Intelligence (DRI), Bengaluru Zonal Unit. According to the prosecution, officers received credible intelligence that an Indian national named Seenu, holding passport number N6709605, was carrying a substantial quantity of narcotic drugs in his baggage while travelling to Delhi aboard the Rajdhani Express (Train No. 22691), departing from Platform No. 8 of KSR Bengaluru Railway Station at 8:00 PM.
Acting on the intelligence, DRI officers accompanied by independent panchas positioned themselves on Platform No. 8 at approximately 7:30 PM on August 1, 2022. When Train No. 22691 stationed at the platform, officers boarded Coach A2 after passengers had settled and proceeded to Seat No. 19. Upon questioning, the occupant identified himself as Senu and produced his train ticket.
While the passenger initially denied carrying illicit items, subsequent questioning led to the inspection of his baggage, where officers discovered 16 kilograms of contraband. Field testing conducted with a Drug Detection Kit gave a positive reaction for Heroin. DRI officers seized the contraband along with other articles under a spot mahazar.
The petitioner was brought to the DRI office, served with summons under Section 67 of the NDPS Act, and his statement was recorded. Based on reasonable belief that he was transporting a commercial quantity of contraband, he was formally arrested, produced before the jurisdictional magistrate, and remanded to judicial custody.
The cause title captures the personal details of the applicant:
- Sinu: Aged 44 years, son of Kuttan Shankar, residing at Arasuvila Veedu, Aroor Ponganadu Post, Trivandrum, Kerala.
Arguments Submitted by Defence Counsel
Appearing on behalf of the petitioner, learned advocate Sri A.K.T. presented several arguments seeking enlargement on regular bail:
- Innocence and False Implication: The defence contended that the petitioner is innocent, a law-abiding citizen, and was falsely implicated in the case without any material connecting him to the crime.
- Inconsistencies in Recovery and Seat Number: Defence counsel argued that discrepancies existed regarding the scene of recovery, pointing out that while the train ticket collected indicated Coach No. 9 and Seat No. 6, the investigating agency claimed recovery from Seat No. 19.
- Procedural Non-Compliance: It was urged that no search was conducted before a Gazetted Officer, no spot mahazar was drawn at the railway station on the ground that it was raining, and the passport of the petitioner was not seized.
- Airport and Transit Discrepancies: The defence submitted that the contraband allegedly originated from Africa, but the petitioner was not apprehended at the airport upon landing in Bengaluru, raising doubts about the chain of custody.
- Personal Circumstances: The petitioner asserted that he is a permanent resident of Trivandrum, Kerala, and ready to abide by court conditions and furnish reliable sureties.
Prosecution Objections
The Special Public Prosecutor appearing for the DRI strongly opposed the bail petition, submitting as follows:
- Massive Commercial Recovery: The investigating agency seized 16 kilograms of Heroin directly from the physical custody of the accused. Under statutory notifications, any quantity of Heroin exceeding 250 grams constitutes a commercial quantity, making the 16 kg seizure a massive commercial haul.
- Severity of Punishment: The alleged offences under Sections 21, 23, 28, and 29 of the NDPS Act carry mandatory minimum sentences of 10 years rigorous imprisonment, extending up to 20 years, along with fine.
- Pending Investigation and Flight Risk: The prosecution emphasized that the investigation was ongoing and argued that releasing the petitioner, who was caught transporting high-value contraband across state borders, would pose a severe risk of absconding, witness tampering, and recidivism.
Judicial Analysis and Detailed Legal Reasoning
Special Judge Smt. B.S. Jayashree evaluated the case records, statutory mandates, and rival contentions to decide Point No. 1: whether the petitioner made out sufficient grounds for bail.
1. Classification of Contraband Quantity
The court evaluated the statutory threshold under Ministry of Finance (Department of Revenue) Notification S.O. 1055(E) dated October 19, 2001. For Heroin (Entry Sl. No. 56):
- Small Quantity: Up to 5 grams.
- Commercial Quantity: 250 grams or more.
The court noted that the 16 kilograms of Heroin seized from the petitioner exceeds the commercial threshold (250 grams) by 64 times, firmly placing the application under the rigorous statutory conditions of Section 37(1)(b) of the NDPS Act.
2. Legal Bar Under Section 37 NDPS Act and Precedent Analysis
The Special Judge emphasized that for commercial quantities, Section 37 imposes a statutory bar where bail cannot be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail.
To outline the legal standard, the court cited authoritative rulings of the Supreme Court of India:
- Union of India v. Mohammed Nawaz Khan (Crl. Appeal No. 1043/2021, dated Sept 22, 2021): The Apex Court held that stringent parameters under Section 37 must be applied rigorously. Reversing a High Court bail order, the Supreme Court ruled that procedural arguments under Section 42 or discrepancies regarding physical possession do not absolve courts from applying the mandatory test 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 Court held that a liberal approach in granting bail under the NDPS Act is 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 held that societal interest in curbing drug trafficking outweighs individual liberty, justifying continued custody during pendency of trial when commercial contraband is involved.
3. Application of Law to Facts and Rejection of Defence Plea
Addressing the defence contentions regarding the absence of a spot mahazar at the railway station due to rain and discrepancies in ticket seat numbers, the court held that such aspects are matters of evidence to be evaluated during trial. The court observed that the petitioner was apprehended with 16 kg of Heroin, tested positive via field kits, and failed to offer any valid explanation for possessing the contraband.
Finding strong prima facie material establishing conscious possession of commercial contraband, the court held that the mandatory conditions under Section 37 were not satisfied. It remains a settled principle that an order refusing bail does not constitute a final determination of guilt, 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 19, 2022:
The petition filed by the petitioner, Sinu, under Section 439 of Cr.P.C. is hereby rejected.