Conscious Possession of Commercial Quantity Attracts Section 37 NDPS Bar – Arrest Not Vitiated When Grounds Furnished Before Remand: Karnataka High Court Denies Bail

“Arrest is not illegal if grounds are communicated in writing before Magistrate — Search at night with recorded reasons is valid — Non-receipt of quantitative test doesn’t dilute Section 37 rigour” - In a significant ruling on 12 November 2025, the Karnataka High Court dismissed a bail petition under Section 483 of the Bharatiya Nagrika Suraksha Sanhita, 2023, filed by Mr. Jeelan Pasha, an accused in a narcotics case involving commercial quantity of MDMA. Justice Shivashankar Amarannavar held that the petitioner failed to meet the twin conditions under Section 37 of the NDPS Act, and that the procedural objections raised regarding arrest, night search, and inventory did not vitiate the arrest or entitle the accused to bail at this stage.

“Written Grounds of Arrest Were Furnished With Signature Prior to Magistrate Production – Arrest Not Vitiated”

A core argument raised by the petitioner was that his arrest was illegal as he was allegedly not informed of the grounds of arrest, violating Articles 21 and 22(1) of the Constitution and Section 47(1) of BNSS 2023. The Court rejected this contention based on records that showed:

“At the time of production of the petitioner to the Jurisdictional Magistrate, grounds of arrest have been intimated to the petitioner. Even along with the petition, the intimation... under Section 47(1) of BNSS has been produced and it contains the signature and LTM of the petitioner.” [Para 12]

The Court relied on the Supreme Court’s recent ruling in Mihir Rajesh Shah v. State of Maharashtra, 2025 INSC 1288, which held that written communication of grounds is mandatory but could be fulfilled if supplied before remand:

“The written grounds of arrest must be furnished... within a reasonable time and in no event later than two hours prior to production before the Magistrate.” [Para 10]

As this condition was satisfied, the High Court held that the arrest was legal and constitutional, and therefore the remand was valid.

“Search Between 11:35 PM and 2:15 AM Was Accompanied By Recorded Grounds of Belief – Section 42 NDPS Complied”

The petitioner also challenged the legality of the night search conducted between 11:35 p.m. and 2:15 a.m., claiming violation of Section 42 of the NDPS Act, which restricts night searches without written reasons.

However, the Court found that:

“In the Mahazar, there is a mention of not obtaining warrant for search and ground of belief are recorded for search after sunset and before sunrise as contained under Section 42 of NDPS Act.” [Para 15]

Hence, the night search was held to be valid and in compliance with statutory safeguards.

“Inventory and Sampling Irregularities Cannot Be Examined at Bail Stage”

The petitioner relied on Bharat Aambale v. State of Chhattisgarh, (2025) 8 SCC 452 and Nagaraj @ Wilson Garden Naga v. State of Karnataka, 2025 SCC OnLine Kar 4319 to argue that inventory and sampling were not done in his presence, vitiating the seizure.

But the Court held:

“No materials are placed on record regarding conducting of inventory and sampling and more so, the investigation is in progress. Such objections cannot be considered at the bail stage.” [Para 15]

This affirms the principle that technical or evidentiary lapses during seizure must be tested during trial, not at the pre-trial bail stage.

“Seizure of 31.78g MDMA Amounts to Commercial Quantity – Delay in Quantitative Report Irrelevant at Bail Stage”

The petitioner sought bail by contending that no quantitative analysis report was available to confirm the purity or percentage of MDMA, which could potentially reduce the charge to a lesser quantity and avoid the Section 37 bar.

However, the Court noted that:

“FSL report indicates weight of the sample before examination is 31.78 grams... and it is opined that the contraband examined is positive for MDMA. This constitutes commercial quantity.” [Para 16]

Even though the quantitative test was pending, the Court held:

“Merely because the quantitative analysis has not been done within thirty days... it cannot be said that quantity seized... is not a commercial quantity.” [Para 17]

Hence, rigour of Section 37(1)(b) of the NDPS Act was held to apply, which restricts bail unless:

1. The Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence;
2. The accused is not likely to commit another offence while on bail.

The Court found neither condition to be fulfilled.

“Serious Offence Punishable With Up to 20 Years – Bail Would Prejudice Investigation”

In concluding, the Court emphasized the seriousness of the offence:

“The offence is punishable with imprisonment for not less than ten (10) years which may extend to twenty (20) years... If the petitioner is granted bail, there are chances of hampering the investigation and tampering the prosecution witnesses.” [Para 17]

Thus, based on the current stage of investigation, the commercial quantity involved, and the lack of exculpatory material, the Court dismissed the petition.

The Karnataka High Court’s judgment reiterates strict compliance with constitutional safeguards at the time of arrest, especially in NDPS cases. However, once such safeguards are met, technical procedural lapses, such as sampling irregularities or delay in quantitative analysis, do not suffice to overcome the Section 37 bar at the bail stage. This decision strengthens the principle that bail in commercial quantity drug cases is not a matter of routine, and the burden to demonstrate innocence and non-recidivism lies squarely on the accused.

Date of Decision: 12 November 2025