IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
BAIL APPL. NO. 5146 OF 2022
CRIME NO.684/2021 OF PARAPPANANGADI POLICESTATION
PETITIONER/3RD ACCUSED:
ABDUL AHAD
AGED 41 YEARS
S/O ABDUL RASHEED, AMINAS HOUSE, POOVATTUMPARA,
PERUVAYAL, KOZHIKODE DISTRICT - 673008
BY ADVS.
P.SAMSUDIN
LIRA A.B.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682031
BY PUBLIC PROSECUTOR SMT.SEETHA S.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA No.5146 of 2022 2
VIJU ABRAHAM, J.
.................................................................
B.A.No.5146 of 2022
.................................................................
Dated this the 10th day of August, 2022
ORDER
This is an application for regular bail.
2. The petitioner is the third accused in Crime No. 684 of 2021 of Parappanangadi Police Station, Malappuram district, alleging commission of offences punishable under Section 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act.
3. The prosecution allegation is that on 11.12.2021 at about 6.10 PM, accused persons, 3 in number, were found riding a motor bike bearing Registration No. 70 X 3997. On interception they were found in possession of 29 grams, 24 grams and 6.50 grams of MDMA respectively and thereby committed the aforesaid offences.
4. Learned counsel for the petitioner submitted that only 6.50 gms of MDMA was seized from the possession of the petitioner. The petitioner was arrested on 11.12.2021 and is in custody since then. Learned counsel further submitted that though the petitioner earlier moved an application for bail before the Sessions Court, Manjeri, the same was rejected as per Annexure-A2 order. Learned counsel further submits that though all the accused were found to be carrying BA No.5146 of 2022 3 contraband articles only 6.50 gms of MDMA was seized from the possession of the petitioner. It is admittedly only an intermediate quantity and therefore rigour under Section 37 of the NDPS Act will not come into play and therefore he is entitled for bail taking into consideration the long period of custody from 11.12.2021. Learned counsel for the petitioner relies on the judgment of this court in Muthu Kumar v. SHO [2008 (2) KLT 890] and also an unreported judgment of this court in Ummer v. State of Kerala in BA No.7960/2022 dated 06.11.2021, wherein bail was granted in a similar case and requested that the petitioner shall also be extended the same benefit granted in those cases.
5. Learned Public Prosecutor seriously opposed the application for bail mainly contending that the investigating officer on getting reliable information that MDMA which is a narcotic drug is being transported in a motorbike, the same was intercepted and when the search of the person as well as the bag in their possession was conducted in the presence of a gazetted officer, 29 gms of MDMA was found in possession of the 1st accused, 24 gms of MDMA was found in the possession of the 2nd accused and 6.50 gms of MDA from the possession of the petitioner, who is the 3rd accused in the above crime. On verification of mobile phones seized it revealed information regarding the alleged trade of MDMA. Further on verification of the bank account of the accused it was found that there are also monetary transactions between parties and that final BA No.5146 of 2022 4 report is filed in the case alleging commission of offences punishable under Section 22(c) and 29 of the NDPS Act, 1985 and the case is now pending as S.C. No. 704/2022 before the Special Court for NDPS cases, Manjeri. The learned public prosecutor further submitted that if the petitioner is released on bail, there is every chance to threaten the witnesses and also to get involved in offences of a similar nature.
6. Admittedly, the contraband was seized from the possession of the petitioner and other accused while they were travelling in a motorcycle. It is true that contraband was seized from the person of each of the accused and that the quantity of narcotic drug seized from the possession of the petitioner is 6.50 gms and the total quantity seized from all the accused persons is a commercial quantity, whereby the rigor of Section 37 of the NDPS Act will come into play. The question to be considered is as to whether the petitioner is entitled to bail in the light of the judgment in Muthu Kumar's case supra and Ummer's case supra for the reason that petitioner was found in possession of only 6.50 gms of MDMA. The learned public prosecutor submitted that though only 6.50 gms of MDMA was seized from the individual possession of the petitioner, there are materials revealed in the investigation that the accused have jointly transported the total quantity of contraband and it is in the said circumstance that Section 29 of the NDPS Act is also alleged against the petitioner and other accused persons. A perusal of the judgments relied on by the petitioners clearly shows that the offences BA No.5146 of 2022 5 alleged against the petitioners therein are only under Section 20(b)(ii)(C) which prescribes punishment of transportation, possession, etc. of contraband involving commercial quantity whereas Section 29 is invoked in cases where there is abetment and criminal conspiracy to commit the offence. In Muthu Kumar's case supra and Ummer's case supra, the court was not considering a case involving Section 29 of the NDPS Act. These judgments were rendered on the facts and circumstances obtaining therein. But in the present case, the specific case of the prosecution is that the total quantity of contraband was in possession of all the accused including the petitioner and he has a specific role in the commission of the offence and therefore cannot be treated as a person who was in possession of only an intermediate quantity as projected by the petitioner. As submitted by the learned Public Prosecutor, the call records and account details reveal constant contact and monetary transactions between the accused. It is also pertinent to note that all the accused were travelling in a motorcycle when they were apprehended and on search, commercial quantity of contraband was seized from them. It is a further case of the prosecution that the contraband was seized from the petitioner from the bag in his possession along with a smoke glass pipe. In view of the above, I am of the opinion that the decisions relied on by the petitioner is not applicable in the facts and circumstances of the present case. Further, the Apex Court in Union of India through Narcotics Control Bureau, Lucknow v. MD. Nawaz BA No.5146 of 2022 6 Khan, (2021) 10 SCC 100 after going through various judgments on the issue of possession of contraband has held that even in cases where the contraband was not seized from person of the accused will not absolve it to the level of scrutiny required under Section 37 of the NDPS Act.
8. This is a case where commercial quantity of narcotic drugs is involved and the jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37. On a consideration of the facts and circumstances of the case, I do not find that any substantial contention has been raised by the petitioner that the twin conditions laid on in Section 37 of the Act is satisfied so as to entitle the petitioner to bail.
9. I find that the petitioner is custody from 11.12.2021 and the charge sheet is already laid. Taking these aspects into consideration, there will be a direction to the Special Court for NDPS cases, Manjeri to expedite the trial of S.C. No.704 of 2022 and dispose of the same without much delay, preferably within an outer limit of 6 months.
With the above said limited direction, the bail application is dismissed.
Sd/-
VIJU ABRAHAM JUDGE cks