A Bail Application was moved by Mr. Kerry Kelvin Mendes, a 21-year-old from Mumbai, to the Sessions Court of Greater Bombay on September 27, 2021, in front of Judge M. G. Deshpande. The Narcotics Control Bureau (NCB) registered a case against Kerry under the following sections of the Narcotics Drug and Psychotropic Substances Act, 1985:
- Section 8, Clause C: Produce, Manufacture, Sale, Purchase, Transport, Warehouse, Use, Consume, Import Inter-State, Export Inter-State, Import into India, Export from India any Narcotic Drug or Psychotropic Substance.
- Section 21, Clause B: When a crime involves quantity, lesser than commercial quantity but greater than small quantity, the punishment shall be rigorous for a term which may extend to ten years, and with a fine which may extend to one lakh rupees. This provision relates to manufacturing, possessing, selling, purchasing, transporting, importing inter-state, exporting inter-state or using any manufactured drug or preparing anything containing the manufactured drug.
- Section 22, Clause A: When a crime involves a small quantity, the punishment shall be rigorous for a term which may extend to one year, or with a fine which may extend to ten thousand rupees, or with both. This provision relates to manufacturing, possessing, selling, purchasing, transporting, importing inter-state, exporting inter-state or using any psychotropic substance.
- Section 22, Clause C: When a crime involves commercial quantity, the punishment shall be rigorous for a term which may be between ten years and twenty years, and with a fine which shall be between one lakh rupees and two lakh rupees.
- Section 23, Clause C: Whoever imports into India or exports from India or tranships any narcotic drug or psychotropic substance in commercial quantity shall be punished with rigorous imprisonment for a term between ten years and twenty years, and with a fine between one lakh and two lakh rupees.
- Section 28: Punishment for Attempts to Commit Offences.
- Section 29: Punishment for Abetment or Criminal Conspiracy of an offence punishable under the act.
The prosecution claimed that there is a strong possibility of the accused indulging in similar offences after the issuance of the bail. The prosecution asked for the rejection of the bail application owing to the possibility of the accused misusing their liberty by either pressurizing the prosecution witnesses or absconding from the trial.
Mr. Vishwanath Tiwary, the intelligence officer at NCB Mumbai received information on November 22, 2020, about the accused delivering LSD and Ganja to someone on the same day at around 06:00 P.M. on a white scooter (Honda Activa: MH47-J2123). Tiwary formed a team of Mr. Samir Wankhede, Mr. V. V. Singh, Mr. P. S. Reddy, Mr. P. D. More and Mr. Anil Mane for the raid and proceeded to take positions at a local McDonald, wherein the accused wearing a black shirt arrived at the said spot. Upon interception, the accused produced a small zip lock transparent polythene pouch, wherein it contained twenty coloured blots of LSD worth Rs. 25,000. The team searched the accused to reveal some Ganja, a brown rolling paper and half cigarette of the Gold Flake branding from the wallet of the accused, wherein the accused revealed that the same were meant for his own consumption. The accused agreed to cooperate with the team. Mr. Ahmed Shaikh was revealed to be the person to receive the LSD from the accused. At 05:56 P.M. three men arrived at the said spot to free the accused by pushing, fighting, shouting and abusing the members of the NCB team, wherein the Mumbai Police were called upon for assistance. The three persons (Mr. Neal D’Silva, Mr. Ahmed Sajid Shaikh and Mr. Shaikh Adnan Salim) and the accused were taken to the Goregaon Police Station where the accused was charged with carrying 20 LSD blots, weighing 0.3 grams each. The weight of the Ganja was 0.95 grams. The said substances along with the rolling paper, half cigarette and mobile phones of the accused and the other three men were seized by the NCB team. The NCB team sent a legal notice to the accused under Section 67 of the act on November 22, 2020; subsequently, the official statement of the accused was recorded on November 23, wherein the accused disclosed that he had been dealing in LSD and Ganja. Mr. Neal D’Silva, Mr. Ahmed Sajid Shaikh and Mr. Shaikh Adnan Salim were arrested between November 25 and 28 after being questioned by the NCB team. Upon the house search of Mr. Ahmed Shaikh on November 25, no illegal drug was either recovered or seized; additionally, a similar fate befell the accused and Mr. Shaikh Adnan Salim after their house was searched on November 27. Upon the house search of Mr. Neal D’Silva on November 27, no illegal drug was either recovered or seized. The NCB team filed a charge sheet against the individuals since the quantity of the LSD blots was deemed to be of commercial quantity (> 0.1 gm).
The bail was contended on the allegation that the weight of the LSD blots includes the weight of the paper too, wherein the exclusion of the weight of the paper would bring the weight of the LSD blots below the commercial mark; however, the court held that the definitions within the act under Section 2 use the term ‘mixture’ to denote the situation where the alleged drug or psychotropic substance is consumed as a mixture. The court added that LSD is sold as a small droplet on a small strip of either blotting paper or gelatin, wherein the droplet gets readily absorbed throughout the strip, i.e. throughout the fibres of the blotting paper; additionally, the court observed that a consumer of LSD cannot separate the said droplet from the fibres of the blotting paper, wherein the consumer must consume the whole mixture of the LSD and the blotting paper containing the same. In the nutshell, the court held that one cannot exclude the weight of the paper from the weight of the LSD.
The charge sheet reveals that Mr. Shaikh Adnan Salim procured the LSD blots from the Dark Web using a form of cryptocurrency and transferred the same to Mr. Ahmed Sajid Shaikh; consequently, the latter transferred the blots to Mr. Neal D’Silva for the purpose of selling; however, Mr. Neal D’Silva failed to sell the blots, wherein he transferred the blots to the accused for returning them to Mr. Ahmed Sajid Shaikh on November 22. The aforementioned facts were corroborated by the statements of the aforementioned individuals. The Hon’ble Supreme Court in the case of Hira Singh & Anr. v. Union of India & Anr. (2020) CRL.A. 722/ 2017 held that the total weight of a psychotropic drug/ manufactured or prepared drug would conjointly include the weight of the neutral material whilst determining small/ commercial quantity, wherein the exclusion of the weight of the neutral material from the actual content by weight of offending drug would frustrate the object and purpose of the act per the court. The nature and frequency of calls between the aforementioned persons: 114, 9 and 8 calls among Kerry, Neal and Ahmed Sajid respectively with 114 calls between Adnan Shaikh and Ahmed Shaikh, along with the flow of transfer of the LSD blots from one individual to another as discussed above reveals that the aforementioned individuals are involved in the chain of procuring, possessing, peddling, selling and consuming the said psychotropic substances according to the NCB team. The court upheld the legislative mandate to adhere to the act to resist the alleged deleterious and deadly infliction on a large number of innocent and vulnerable persons, wherein the release of the accused and co-accused would, in all probability, result in them continuing in trafficking and/ or dealing with psychotropic substances, resulting in the demolition of the life of many persons in society whilst threatening the safety and security of the future generations; consequently, the court weighed in on declining the bail application of the accused.
It is worth noting that the onus of proof that the small quantity of narcotic drugs recovered from the accused’s possession were meant for the personal consumption of the accused and not for either sale or distribution lies squarely on the accused; this position was held by the Supreme Court in the case of Durand Didier v. Chief Secretary, Union Territory of Goa (1990) 1 SCC 95. The court in the present case observed that the accused failed to provide any satisfactory explanation of the LSD blots being for his personal consumption even though there was a heavy burden on the accused to prove the same. It is worth mentioning that the Supreme Court in the case of Union of India v. Rattan Mallik (2009) 2 SCC 624 and the Bombay High Court in the case of Abdel Basit Parihar v. Union of India (2020) SCC Bom 8032 iterated the fact that recovery of a narcotic drug/ psychotropic substance with the accused in a case is immaterial for the application of Section 37 of the act and the same is not an absolute necessity for prosecuting and punishing the said accused.
Judge M. G. Deshpande rejected the position that except for the accused no other individual was found possessing any narcotic drug whilst upholding the investigation of the NCB team into everyone connected to the incident. The judge was not satisfied that the accused and the co-accused would not commit any offence under the act whilst on bail owing to the grave and very serious quantity of LSD (0.3 gm) recovered from the accused. The judge rejected the bail application of the accused while holding that the trial of the accused and co-accused in an expeditious manner since all the accused and co-accused are under-trial prisoners.
The judge asked the accused to cooperate with the authorities to start the trial as soon as possible by framing the said charges instead of consuming time in filing bail applications. The judge ordered the NCB to frame the charges as soon as possible in order to begin the trial of the accused and co-accused.