Executive Summary of the Ruling

The XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bengaluru, presided over by Smt. B.S. Jayashree, rejected the anticipatory bail application (Crl. Misc. No. 6854/2022) filed by Aswin Samuel John (Accused No. 2). The petitioner sought pre-arrest bail under Section 438 of the Code of Criminal Procedure (Cr.P.C.) in connection with Crime No. 92/2022 registered by the Soladevanahalli Police Station. The offences alleged against the petitioner and co-accused fall under Sections 20(b), 20(b)(i), and 22(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The court held that given the recovery of a commercial quantity of contraband and the stringent provisions of Section 37 of the NDPS Act, the petitioner was not entitled to the discretionary relief of anticipatory bail.

Background and Factual Matrix

The criminal law mechanism was initiated following a raid conducted by the Police Inspector of Soladevanahalli Police Station on May 11, 2022. Acting on credible information regarding the illegal sale of narcotic substances near the Chikkabanavara Railway Parallel Road, the raiding party obtained necessary permissions from the Assistant Commissioner of Police (ACP) and secured independent panchas.

At the spot, the police apprehended two individuals identified as Subin Binoy (Accused No. 1) and Mohammed Irfan (Accused No. 3). A personal search conducted in the presence of the ACP yielded 10 grams of ganja across 10 packets and 8 to 10 grams of weed oil in 12 plastic packets. Subsequent interrogation of Accused Nos. 1 and 3 revealed that they resided at Flat No. 1016, Desire Apartment, alongside other individuals—Sojin, Kiran Kumar, Anandu Murali, and Mohammed Shiyas (Accused Nos. 4 to 7).

A follow-up search at the apartment led to the apprehension of Accused Nos. 4 to 7 and the seizure of a substantial quantity of contraband under a detailed panchanama:

• Ganja: 1,580 grams
• Weed Oil (Hashish Oil): 1 kg 960 grams
• Additional Weed Oil: 154 plastic cans containing a total of 1,188 grams
• Equipment: Weighing machines, vessels, and other processing materials

During interrogation, Accused Nos. 1 and 3 disclosed that they had procured the seized contraband from Aswin Samuel John (Accused No. 2). On the basis of these disclosures, the investigating agency named Aswin Samuel John as Accused No. 2 in Crime No. 92/2022, treating him as an absconding supplier.

Contentions Raised by the Petitioner

Advocate Sri Siji Malayil, representing Aswin Samuel John, presented the following grounds in support of the anticipatory bail plea:

1. False Implication: The petitioner is an innocent, law-abiding citizen aged 22 years, residing in Kottayam, Kerala, who has been falsely implicated by the police.
2. Lack of Direct Recovery: No contraband was directly seized from the physical possession of the petitioner. His implication rests solely on the voluntary statements of co-accused persons.
3. Procedural Violations: The investigating agency failed to follow the mandatory procedural safeguards prescribed under the NDPS Act during search and seizure operations, vitiating the proceedings.
4. Cooperation and Residence: The petitioner is a permanent resident ready to cooperate with the ongoing investigation, abide by any conditions imposed by the court, and furnish reliable sureties.
5. Punishment Scale: The alleged offences do not carry the death penalty or life imprisonment.

Arguments Advanced by the Prosecution

The Public Prosecutor strongly opposed the grant of pre-arrest bail on the following legal and factual grounds:

1. Commercial Quantity: The total contraband seized—specifically over 3 kilograms of weed oil (hashish oil)—falls within the threshold of a commercial quantity under Ministry of Finance Notification S.O.1055(E).
2. Role as Supplier: The petitioner is the key link in the drug distribution chain who supplied commercial quantities of contraband to the other accused for distribution among youth.
3. Severity of Punishment: Offences involving commercial quantities under Section 22(c) carry mandatory rigorous imprisonment of not less than 10 years, extendable up to 20 years, along with heavy fines.
4. Risk of Tampering and Absconding: Granting anticipatory bail while the investigation is pending poses a significant risk of witness tampering, evidence suppression, and re-offending.

Legal Analysis and Judicial Reasoning

In evaluating Point No. 1—whether sufficient grounds were established for anticipatory bail—the court conducted a detailed analysis of the legal framework governing bail under the NDPS Act.

1. Classification of Seized Contraband

The court referred to Notification S.O.1055(E) dated October 19, 2001:

• Hashish Oil / Weed Oil (Sl. No. 23): 1 kg constitutes a commercial quantity. The total weed oil seized in this case (1 kg 960 grams plus 1,188 grams in plastic cans) far exceeds the 1 kg threshold.
• Ganja (Sl. No. 55): 20 kg constitutes a commercial quantity. While the ganja seized (1,580 grams) fell below the commercial threshold, the simultaneous seizure of commercial quantities of weed oil brings the case under the severe statutory bar.

2. Application of Section 37 of the NDPS Act

The court emphasized that Section 37 of the NDPS Act places stringent limitations on the court’s power to grant bail for offences involving commercial quantities. Bail under this provision is an exception rather than the rule.

To grant bail in such cases, the court must be satisfied of two cumulative conditions:

1. There exist reasonable grounds for believing that the accused is not guilty of the alleged offence.
2. The accused is not likely to commit any offence while on bail.

3. Precedents Cited by the Special Court

The Special Judge relied on binding precedents from the Supreme Court of India:

• State of Kerala v. Rajesh (2020) 12 SCC 122: The Apex Court clarified that “reasonable grounds” mean something more than prima facie grounds; it requires substantial probable cause to believe the accused is not guilty. Liberal approaches to bail under the NDPS Act are uncalled for given the societal harm of drug trafficking.
• State of M.P. v. Kajad (2001) 7 SCC 673: The Supreme Court held that negation of bail is the statutory rule under Section 37(1)(b), and grant of bail is a rare exception.
• Babua v. State of Orissa (2001) 2 SCC 566: The Court highlighted that individual liberty must be balanced against societal interest. Persons dealing in lethal narcotic substances pose grave dangers to society, justifying detention during proceedings when prima facie material exists.

Final Findings and Order

The court observed that the investigation papers established a clear prima facie link showing that Aswin Samuel John was the primary supplier who provided the commercial quantity of weed oil to Accused Nos. 1 and 3. The petitioner failed to produce any material to disprove this connection at the threshold stage.

Finding no reasonable grounds to believe that the petitioner was innocent or that the statutory bar of Section 37 could be bypassed, the Special Court answered Point No. 1 in the negative.

Formal Order

The anticipatory bail petition filed by Aswin Samuel John under Section 438 of Cr.P.C. in Crl. Misc. No. 6854/2022 was rejected by the Court on August 2, 2022.