In a significant legal ruling under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the Special Court for NDPS cases in Bengaluru dismissed the second bail petition filed by accused Asif Mohammed Asif (Accused No. 2). The order was delivered by Smt. B.S. Jayashree, XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, in Criminal Miscellaneous Petition No. 8314/2022. The court emphasized that the rigorous conditions under Section 37(1)(b) of the NDPS Act mandate the negation of bail as the rule and its grant as an exception when commercial quantities of illicit narcotics are involved.

Overview of the Prosecution Case

The criminal proceedings originated from an investigation conducted by the Kodigehalli Police Station under Crime No. 167/2021. According to the prosecution details, on December 3, 2021, the Police Sub-Inspector (PSI) of Kodigehalli Police Station received credible intelligence regarding the illegal sale of ganja and ganja oil near the Hebbal Flyover in Bengaluru.

Following standard protocols, the police registered a case under Section 20(b) of the NDPS Act against unknown persons and conducted a raid. During the operation, law enforcement apprehended Accused No. 1 and recovered 11 Kilograms of Ganja Oil, 250 grams of Ganja, and a Lenovo mobile phone, with an estimated aggregate market value of Rs. 3,30,00,000.

Upon interrogation, Accused No. 1 made a voluntary statement revealing that Accused No. 2 (petitioner Asif Mohammed Asif) and Accused No. 3 had supplied the seized contraband. Subsequent investigation led to the apprehension of the petitioner. The petitioner allegedly disclosed in his voluntary statement that on December 2, 2021, he along with co-accused had purchased 11 Kg of hashish oil and 250 grams of ganja from a contact in Rajahmundry, Andhra Pradesh, and stored the inventory at a premises in Bidrahalli prior to the Hebbal Flyover distribution attempt.

Arguments Presented by the Defense

Represented by advocate Sri M.B., the petitioner filed a second bail application under Section 439 of the Code of Criminal Procedure (Cr.P.C.) seeking enlargement on regular bail. The primary grounds submitted by the defense included:

1. False Implication and Role Immateriality: The petitioner contended that he was an innocent citizen falsely implicated solely on the basis of the voluntary statement of Accused No. 1. The defense submitted that he worked merely as a driver under Accused No. 1 and had no active connection with the alleged offense.
2. Lack of Direct Recovery: Counsel argued that no contraband was directly seized from the personal physical possession of the petitioner at the spot.
3. Completion of Investigation: The defense highlighted that the investigating agency had already completed its probe and filed the charge sheet, rendering further custodial interrogation unnecessary.
4. Procedural Incomplete Compliance: Allegations were made that statutory procedures prescribed under the NDPS Act were not properly followed during the recovery process.

Objections Raised by the Prosecution

The Public Prosecutor strongly opposed the second bail plea, highlighting the gravity and social impact of the offense:

1. Commercial Quantity Involvement: The prosecution pointed out that the seizure comprised 11 Kg of Ganja Oil. Under Ministry of Finance Notification S.O. 1055(E) dated October 19, 2001 (Entry No. 23), any quantity of ganja oil equal to or exceeding 1 Kg constitutes a commercial quantity.
2. Severe Statutory Penalties: Offenses involving commercial quantities attract stringent punishment comprising rigorous imprisonment for a minimum term of 10 years, extendable up to 20 years, along with mandatory monetary fines.
3. Prior Criminal Antecedents: The prosecution revealed that petitioner Asif Mohammed Asif was already facing prosecution in another narcotics case registered under Crime No. 123/2019 at Suddaguntepalya Police Station for offenses under Sections 8(c), 21(c), and 20(b)(ii)(C) of the NDPS Act.
4. Risk to Society: The prosecution expressed strong apprehensions that if released, the petitioner would re-engage in illicit drug trafficking targeting the younger generation and might tamper with prosecution witnesses.

Judicial Analysis and Findings of the Court

Special Judge Smt. B.S. Jayashree evaluated the material on record to determine whether the petitioner satisfied the legal threshold for bail in cases involving commercial quantities.

Application of Section 37 NDPS Act Bar

The court observed that because the seized quantity of ganja oil (11 Kg) substantially exceeded the 1 Kg commercial threshold, the mandatory restrictions under Section 37(1)(b) of the NDPS Act were fully attracted. Under Section 37, bail cannot be granted for commercial quantity offenses unless two twin conditions are satisfied:

1. The court must be satisfied that there exist reasonable grounds for believing that the accused is not guilty of such offense.
2. The court must be satisfied that the accused is not likely to commit any offense while on bail.

Examination of Legal Precedents

To reinforce the legal standards governing commercial quantity bail applications, the court relied on landmark Supreme Court rulings:

• State of Kerala vs. Rajesh (2020) 12 SCC 122: The Apex Court clarified that “reasonable grounds” mean something more than prima facie grounds, contemplating substantial probable causes to believe the accused is innocent. The judgment underscored that liberal approaches in granting bail under the NDPS Act are uncalled for given the statutory objective.
• State of M.P. vs. Kajad (2001) 7 SCC 673: The Supreme Court held that under Section 37(1)(b)(ii), “negation of bail is the rule and its grant an exception”. Limitations under Section 37 apply in addition to regular provisions under the Code of Criminal Procedure.
• Babua vs. State of Orissa (2001) 2 SCC 566: The Supreme Court highlighted the duty to balance individual liberty against broader societal interests, stating that keeping individuals accused of severe drug offences behind bars during trial protects society from lethal activities.

Absence of Grounds for Exoneration

Addressing the defense argument regarding non-recovery from the petitioner’s person, the court held that mere non-recovery on the spot does not automatically exonerate a co-accused when prima facie evidence demonstrates active involvement in procurement, storage, and transport. The investigation records indicated that the petitioner purchased the commercial contraband from Rajahmundry and arranged its storage at Bidrahalli prior to distribution.

Furthermore, given the petitioner’s involvement in a prior NDPS case (Cr.No.123/2019 of Suddaguntepalya PS), the court found no basis to conclude that he was unlikely to commit similar offenses if released.

Final Order

Finding no reasonable grounds to hold that petitioner Asif Mohammed Asif was not guilty or to satisfy the statutory requirements under Section 37 of the NDPS Act, the court answered the point for consideration in the negative.

In its final order dated September 17, 2022, the Court of the XXXIII Additional City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru, formally rejected the second bail petition filed under Section 439 Cr.P.C. in Crl. Misc. No. 8314/2022.