Mumbai, April 29, 2022 – In a significant ruling today, the Special Judge for NDPS Cases at Greater Mumbai, V. V. Patil, granted bail to Babirye Grace, a 28-year-old Ugandan national arrested on drug trafficking charges. The court determined that the quantity of Mephedrone (MD) recovered from her was non-commercial, and crucially, found no prima facie evidence of a conspiracy with a co-accused, thereby not attracting the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

Babirye Grace was arrested by the Anti Narcotics Cell (ANC), Ghatkopar Unit, on March 20, 2022, in connection with C.R. No. 21/2022, for alleged offenses under Section 8(c) read with Section 22 of the NDPS Act.

The Prosecution’s Case:

According to the prosecution, specific intelligence was received on March 20, 2022, that an African lady named Babirye Grace and a person named Ajamiya Sayyed were involved in the sale of Mephedrone (MD) in Mumbai and its suburbs. The information indicated they would be selling MD near Dudh Sagar Society bus stop, Dudh Sagar Road, Goregaon (East), Mumbai, between 12:15 PM and 12:30 PM.

Acting on this tip-off, ANC officers laid a trap and apprehended both Babirye Grace and Ajamiya Sayyed at the specified location. Upon searching Babirye Grace, 30 grams of MD were allegedly recovered from her possession, while 52 grams of MD were recovered from Ajamiya Sayyed. The seized contraband led to the registration of an FIR against both accused.

The Applicant’s Plea for Bail:

Mr. Gorakh, the counsel for Babirye Grace, argued that his client had been falsely implicated. He emphasized that the quantity of MD recovered from her (30 grams) was a “non-commercial quantity,” thereby making the bar under Section 37 of the NDPS Act inapplicable. Section 37 imposes strict conditions for bail in cases involving commercial quantities, requiring the court to be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit any offense while on bail. The applicant also expressed her willingness to abide by any terms and conditions imposed by the court.

Prosecution’s Opposition:

Mr. Rajput, the Assistant Public Prosecutor (APP) for the State, vehemently opposed the bail application. He contended that both Babirye Grace and Ajamiya Sayyed were apprehended together, and the intelligence indicated their joint involvement, suggesting a conspiracy under Section 29 of the NDPS Act. The APP further highlighted that the recovered quantity from the applicant, though not commercial, was an “intermediate quantity,” making the offense punishable for up to 10 years. A significant point of concern for the prosecution was that Babirye Grace is a foreign national (citizen of Uganda), raising fears that she might abscond if released on bail, thus hindering the trial.

Court’s Deliberation and Ruling:

Special Judge V. V. Patil meticulously examined the arguments and the available documents. The court acknowledged that specific information regarding both accused dealing in contraband MD was received and that they were apprehended together. However, the crucial point of contention revolved around the applicability of the conspiracy charge (Section 29) and its impact on the quantity recovered.

The defense counsel cited the authority of Sangeeta Gaikwad V/s. State of Maharashtra (Cri. Application No. 2597/2006, dated August 3, 2006), which relied on an Apex Court ruling (2005 ALL MR(Cri.) 229 (SC)). This precedent held that if two persons are found together with quantities of heroin that, individually, are less than the commercial quantity, Section 29 (conspiracy) is not automatically attracted unless there is independent evidence of a conspiracy.

Adopting this legal principle, the Special Judge noted, “In the present case also, though prosecution claimed that applicant and accused no.2 hatched conspiracy in commission of offence, there is no prima-facie evidence regarding conspiracy. Therefore in absence of independent evidence regarding conspiracy, it cannot be said that applicant and accused no.2 hatched conspiracy only because they were found together. Hence recovery made from the applicant needs to be considered independent recovery.”

With the conspiracy charge not holding prima facie, the court then considered the 30 grams of MD recovered from Babirye Grace as an “independent recovery,” which falls under the category of “non-commercial quantity.” This meant that the stringent conditions of Section 37 of the NDPS Act did not apply.

The court also considered that the applicant had no prior criminal antecedents and was willing to comply with all court-imposed conditions. Addressing the prosecution’s apprehension regarding her foreign nationality, the judge stated, “In such circumstances, she cannot be denied bail merely because she is foreign national. So far as apprehension of prosecution regarding absconding and tampering with evidence is concerned, it can be taken care of by imposing stringent conditions.”

Bail Conditions:

Consequently, the court allowed Bail Application No. 687/2022, ordering Babirye Grace’s release on the following conditions:

1. Execution of a Personal Recognizance (P.R.) Bond of Rs. 50,000/- with one or more sureties in the like amount.
2. Applicant to attend the office of ANC, Ghatkopar Unit, every Wednesday between 1:00 PM to 4:00 PM until the charge-sheet is filed.
3. Applicant and sureties to provide mobile numbers, correct residential addresses, and names/contact details of two relatives.
4. Proof of identity and residence to be produced at the time of executing the bail bond.
5. Applicant not to tamper with prosecution witnesses/evidence and to cooperate for early disposal of the trial.
6. Applicant not to commit a similar offense while on bail.
7. Permission was granted for furnishing a provisional cash bail of Rs. 50,000/- for a period of eight weeks.

The order, dictated, transcribed, and signed on April 29, 2022, was uploaded on April 30, 2022. This ruling highlights the importance of specific evidence for conspiracy charges and the differentiated application of bail provisions based on the quantity of contraband involved.