The grant of bail is a critical juncture in the justice delivery system, especially in cases under the stringent Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). A recent order from the Special Court for NDPS Act at Greater Bombay, specifically Criminal Bail Application No. 230 of 2023, in the matter of Mohd. Shafi Usman Gani Shaikh @ Babu, provides an insightful examination of judicial discretion when the quantity of the seized contraband falls below the commercial threshold. This decision, delivered by Additional Sessions Judge Shri V.G. Raghuwanshi on February 6, 2023, emphasizes the principle that the absence of the rigorous conditions of Section 37 of the NDPS Act significantly tilts the scales in favor of the applicant’s fundamental right to liberty.

The applicant, Mohd. Shafi Usman Gani Shaikh, was arrested following a police patrol on January 14, 2023, by the RAK Marg Police Station. The allegation was that, upon a suspicious stop and search following due legal procedure, the applicant was found in possession of 240 grams of Ganja. Consequently, he was booked under Section 8(c) read with Section 20(b) of the NDPS Act. The defense, represented by Learned Advocate Mr. Samir Adangale, sought bail by asserting the applicant’s innocence, his stable residence, and, crucially, the fact that the seized quantity was less than the commercial quantity. Furthermore, the defense pointed out that the investigation was completed, and nothing further remained to be recovered from the applicant. A significant technical point raised was that the Ganja was “not tested on the spot,” though the court did not directly address this as a basis for its decision. The defense strongly affirmed the applicant’s willingness to abide by all necessary conditions and furnish surety.

The prosecution, represented by Learned APP Mr. P.J. Tarange, mounted a strong resistance to the bail plea. The main argument for denying bail rested on the apprehension that the applicant, if released, would “repeat such offence.” To support this, the prosecution submitted a record alleging that five previous offenses were pending against the applicant. This claim of a negative criminal antecedent was the primary obstacle the court had to overcome in its deliberation. The prosecution’s resistance, typical in NDPS cases, sought to paint the applicant as a habitual offender who posed a risk to society, warranting continued detention.

The court’s analysis, however, was anchored firmly in the statutory framework of the NDPS Act. The cornerstone of the judgment was the quantitative finding: the 240 grams of Ganja seized was indisputably less than the commercial quantity. The court correctly identified that for a non-commercial quantity offense, the maximum punishment attracted is imprisonment up to 10 years and a fine. Critically, this finding meant that the rigours of Section 37 of the NDPS Act are not attracted in this case. Section 37, which imposes a dual test requiring the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and is unlikely to commit any offense while on bail, applies only to offenses involving a commercial quantity or those punishable by death or life imprisonment. By circumventing this high threshold, the court was able to proceed with the normal considerations for bail under the Code of Criminal Procedure.

Addressing the prosecution’s central argument regarding the previous offenses, the court demonstrated due diligence. The Learned Counsel for the applicant successfully countered the prosecution’s list by pointing out a specific instance where the applicant had been acquitted in a corresponding NDPS Special Case (No. 125/2009). This evidence led the court to conclude that the prosecution’s list of pending offenses was “not trustworthy.” By discrediting the claim of an established criminal history and confirming the non-applicability of Section 37, the court found that a “case is made out for exercise discretion in favour of applicant/accused.” The court thus allowed Criminal Bail Application No. 230/2023, releasing Mohd. Shafi Usman Gani Shaikh on executing a P. R. Bond of Rs. 25,000/- with one or more solvent sureties. The conditions imposed were standard—prohibiting tampering with evidence or hampering the investigation, requiring the applicant to appear before the Trial Court regularly, and mandating appearances before the Investigating Officer as and when called. This judicial outcome serves as a crucial reminder of the importance of the quantity seized in an NDPS case and the non-applicability of stringent statutory bars when dealing with sub-commercial quantities, thereby upholding the presumption of innocence.