Kuruppu Swamy vs State Of Kerala
2021 Latest Caselaw 12888 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE ASHOK MENON
       FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943
                       BAIL APPL. NO. 4431 OF 2021
        CRIME NO.14/2020 OF ANGAL EXCISE RANGE OFFICE, Kollam
  AGAINST THE ORDER/JUDGMENT IN SC 1156/2020 OF ADDITIONAL DISTRICT
                COURT & SESSIONS COURT - V, KOLLAM, KOLLAM
PETITIONER/S:

           KURUPPU SWAMY
           AGED 40 YEARS
           S/O.MURUGAN, RESIDING AT 9 OF 6, GURUSWAMY STREET, KC
           ROAD, SHENKOTTA VILLAGE, SHENKOTTA TALUK, TAMILNADU,
           PIN - 627 809.

           BY ADVS.
           SIVAJI B.S.
           DHANYA SREENIVASAN



RESPONDENT/S:

           STATE OF KERALA,
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, ERNAKULAM.

           SRI.E.C.BINEESH-PP


THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.06.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 4431 OF 2021          2



                           O R D E R

Dated this the 11th day of June 2021

Application for regular bail under Section 439 of Cr.P.C.

This is the fourth application for bail filed by the applicant who

is alleged to have committed an offence punishable under Section

22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (NDPS Act 'for short).

2. The prosecution case, in brief, is that on 13.02.2020, the

officials at Aryankavu Excise Check Post intercepted a lorry bearing

registration No. TN 92/C/3736 driven by the 1st accused. On

examination of the vehicle, 864 capsules of Spasmo proxyvon, a

Psychotropic Substances was seized from the possession of the 1st

accused. He was arrested and the crime was registered. The 1st

accused gave a statement to the effect that he had got the said

articles from the applicant, who is allegedly conducting a shop in

Tamil Nadu. The applicant had approached this Court taken all

possible grounds including the fact that he cannot be implicated

solely on the basis of the confession statement of the 1st accused.

This court has answered all those facts.

3. The learned counsel now argues that the contraband which

was seized is a mixture of drugs including paracetamol and

therefore the exact quantity of the narcotic drug tramadol is to be

identified before he is convicted and so it is not a commercial

quantity. The earlier decision of the Apex Court in E Micheal Raj

v. Intelligence officer, Narcotic Control Bureau [2008 (2)

KHC 323] was overruled by a later decision of the Apex Court in

Heera Singh and another v. Union of India and another

[2020 (2) KHC 551], wherein it has been established that the

total quantity of the mixture will have to be considered to arrive at

a conclusion that whether the quantity involved is commercial or

not. In view of this fact, the embargo under Section 37(1) (b) (ii)

of the NDPS Act is applicable. There are no grounds to hold that

the applicant is not guilty.

4. Even though a subsequent application for bail can be filed,

it can only be done on change of circumstances as is held in the

decision Kalyan Chandra Sarkar v. Rajesh Rajan [2004 KHC

754]. Hence the application for bail cannot be entertained and I

am sure that the trial court would dispose of the matter as

expeditiously as possible and the fact that the applicant has been in

custody for a fairly long time is also not a reason to grant him bail.

The bail application is therefore dismissed.

SD/-

ASHOK MENON JUDGE

rmm