Kerala High Court
Sreeraj vs State Of Kerala on 8 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942
Bail Appl..No.1718 OF 2021
CRIME NO.12/2020 OF Nilambur Excise Range Office , Malappuram
PETITIONER/ACCUSED:
SREERAJ
AGED 25 YEARS
S.O. GANGADHARAN,
NEDUVA,
CHETTIPARY,
PARAPPANANGADI, MALAPPURAM
PIN-676319
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.K.ANAND (A-1921)
RESPONDENT/:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
ERNAKULAM, PIN-682031
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SMT.MAYA.M.N., PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
08.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.1718 of 2021 2
P.V.KUNHIKRISHNAN, J
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B.A.No.1718 of 2021
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Dated this the 8th day of March, 2021
ORDER
This Bail Application is filed under Section 439 of Criminal
Procedure Code.
2. Petitioner is the accused in Crime No.12/2020 of
Nilambur Excise Range, Malappuram. This is the 3 rd bail
application filed by the petitioner under Section 439 Cr.P.C.
3. The short facts are like this: The above crime is
registered against the petitioner and another alleging offences
punishable under Sections 22(c), 20(b)(ii)(A), 25, 29 of
Narcotics Drugs and Psychotropic Substances Act (NDPS Act).
4. The prosecution case is that the petitioner and other
accused were found in possession of 56.64 grams of Ganja,
490 mg of LSD, 4.122 gms of MDMA crystals and 21.22 gms
of MDMA pills on a motor bike at Anamari desom,
Vazhikkadavu. The petitioner and other accused were
arrested on 19.2.2020. The specific case of the prosecution is
that the contraband seized from the petitioner is 56 gms of
Ganja and 490 mg of LSD.
5. Heard the counsel for the petitioner and the learned
Public Prosecutor.
6. The counsel for the petitioner submitted that as far
as the Ganja alleged to be seized from the petitioner is
concerned, it is small quantity. The contention raised by the
counsel for the petitioner is that the LSD alleged to be seized
from the petitioner is 490 mg. As per item No.133 of the
table in the NDPS Act, the small quantity is 0.002 gms and the
commercial quantity is 0.1 gm. In this case, the prosecution
case is that the quantity seized from the petitioner is
commercial quantity. The counsel submitted that the
substance alleged to be seized from the petitioner is LSD
stamp. The contention of the petitioner is that the weight of
the contraband seized is taken together by the investigating
officer. According to the counsel if the LSD alone is taken it will
be below the small quantity. This is the sum and substance of
the contention. The counsel also relied on the judgment of
the Bombay High Court dated 7.12.2020 in Crl.Bail
Application No.352 of 2020 where the substance was 10
pieces of papers containing LSD drops.
7. The learned Public Prosecutor seriously opposed the
bail application. The Public Prosecutor submitted that this Court
may not consider this question while considering a bail
application. The Public Prosecutor submitted that it is a
matter of evidence. According to the Public Prosecutor, the
definite case of the prosecution is that the petitioner was found
in possession of commercial quantity of LSD. While considering
this bail application, this point may not be decided and there
can be a direction to the lower court to expedite the trial, is the
submission of the Prosecutor. The Prosecutor also relied on
the judgment of the Apex Court in Hira Singh and Another v.
Union of India and Another (2020 (2) KHC 551) and the
decision of the Karnataka High Court in Registrar General,
High Court Karnataka v. A.Shahid and Others (2016 KHC
3351).
8. The admitted case of the prosecution is that only a
small quantity of ganja is seized from the possession of the
petitioner. The only question to be decided is whether the
petitioner was in possession of commercial quantity of LSD
stamp. The point raised by the counsel for the petitioner is
that the contraband article seized from the petitioner are really
falling under the category of small quantity as the weight
shown in the mahazar is 0.490 gms which includes the weight
of stamp. According to the counsel, it does not conclusively
establish that the contraband is above the intermediary
quantity. The counsel also submitted that only a quantitative
analysis can establish the real quantity of the contraband
article. It is an admitted fact that final report is filed in this
case before the court below and now the matter is pending
trial. Admittedly, the petitioner is in custody from 19.2.2020
onwards. After going through the Judgment of the Bombay
High Court, which I mentioned earlier, I think an arguable
point is raised by the petitioner. The Bombay High Court
considered the decision in Hira Singh (supra) also. The
relevant portion of the judgment of the Bombay High Court is
extracted hereunder:
"8.I have perused the First Information Report,
Recovery Panchanamas and Chemical Analyser's report. At
the outset, it may be stated that the most common form of
LSD is drop of LSD solution dried onto piece of paper or
gelatin sheet, pieces of blotting papers which releases the
drop when swallowed/consumed. In this case, drug was
found in the form of drops dried onto 23 pieces of papers.
Thus, process of drying LSD solution on a piece of paper,
merely facilitates consumption of drug. This process neither
changes the substance of the drug or its chemical
composition. It is argued by the State, that since dried LSD
drops of LSD solution, cannot be segregated or separated
from the papers, it amounts to a 'mixutre' and therefore the
weight of the paper is to be counted with 'LSD dots' for
determining the quantity of drug which was more than 0.1
gram. The learned APP relies on Entry-239 of the Table and
Footnote-(4) appended thereto of the NDPS Act. Entry
No.239 and Footnote-(4) reads as under:
239. Any mixture or preparation that of with or
without a neutral material, of any of the above drugs.
Lesser of the Small quantity between the quantities
given against the respective narcotic drugs or
psychotropic substances mentioned above forming part
of the mixture.
Lesser of the Commercial quantity between the
quantities given against the respective narcotic drugs
or psychotropic substances mentioned above forming
part of the mixture.
"4. The quantities shown in column 5 and column 6
of the Table relating to the respective drugs shown in
column 2 shall apply to the entire mixture or any
solution or any one or more narcotic drugs or
psychotropic substances of that particular drug in
dosage form or isomers, esters, ethers and salts of
these drugs, including salts of esters, ethers and
isomers, wherever existence of such substance is
possible and not just its pure drug content."
9. In my view, though after swallowing piece of paper,
which causes release of drug but since that paper only
carries drug and facilitates its consumption, the paper with
LSD drops, as a whole, is neither "preparation", within the
meaning of Section 2(xx), nor a "mixture" within the
meaning of the NDPS Act. So far as the judgment of the
Hon'ble Apex Court in the case of Hira Singh (supra) is
concerned, issue therein was, whether mixture of narcotic
drug or psychotropic substances with one or more neutral
substances, quantity of neutral substances can be excluded
while determining the small or commercial quantity of
narcotic drug and psychotropic substances. However
herein, the papers containing dried LSD drops of LSD
solution, not being a mixture, and the paper being not a
neutral substance, judgment of the Apex Court, has no
application to the facts of this case.
9. The learned Judge, as it appears from the impugned
order, has accounted weight of papers "while calculating and
determining quantity of the LSD as a "commercial quantity".
In addition, while holding quantity of charas recovered from
the applicant was 'commercial quantity', is equally incorrect
because charas allegedly recovered from the applicant was
970 gms i.e.less than 1 kg.
10. Thus in consideration of the facts of the case, the
findings of the learned Judge that weight of the paper
containing dried LSD drops of LSD solution is required to be
accounted while determining its quantity; whether small or
otherwise is incorrect. In this case, the Chemical Analyser's
report, shows quantity of LSD drops solution was 0.4128
milligrams, which was below 0.1 gm of commercial quantity.
Therefore, rigors of Section 37 of the NDPS Act, are not
applicable to the facts of this case.
11. Herein, the applicant has no criminal antecedents. He
is in custody since June, 2019. Therefore, in the facts of
the case, the applicant is admitted to bail on following
terms and conditions.:"
9. This is a bail application filed under Section 439 of the
Cr.P.C I don't want to decide this question while considering
this bail application because it will affect the case of the
prosecution itself. I leave open this question to be decided by
the trial court. But considering the entire facts and
circumstances of the case and also considering the fact that
the petitioner is in custody from 19.2.2020 onwards and the
petitioner is aged only 19 at the time of the offence and also
considering the fact that there is no criminal antecedents
against the petitioner, I think this bail application can be
allowed on stringent conditions.
10. Moreover, considering the need to follow social
distancing norms inside prisons so as to avert the spread of the
novel Corona Virus Pandemic, the Hon'ble Supreme Court in
Re: Contagion of COVID-19 Virus In Prisons case (Suo
Motu Writ Petition(C) No.1 of 2020) and a Full Bench of
this Court in W.P(C)No.9400 of 2020 issued various salutary
directions for minimizing the number of inmates inside prisons.
11. Moreover, it is a well accepted principle that the bail is
the rule and the jail is the exception. The Hon'ble Supreme
Court in Chidambaram. P v Directorate of Enforcement
(2019 (16) SCALE 870), after considering all the earlier
judgments, observed that, the basic jurisprudence relating to
bail remains the same inasmuch as the grant of bail is the rule
and refusal is the exception so as to ensure that the accused
has the opportunity of securing fair trial.
12. Considering the dictum laid down in the above
decision and considering the facts and circumstances of this
case, this Bail Application is allowed with the following
directions:
1. Petitioner shall be released on bail on
executing a bond for Rs.50,000/- (Rupees Fifty
Thousand only) with two solvent sureties each
for the like sum to the satisfaction of the
jurisdictional Court.
2. The petitioner shall appear before the
Investigating Officer for interrogation as and
when required. The petitioner shall not,
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court or
to any police officer.
3. Petitioner shall not leave India without
permission of the jurisdictional Court.
4. Petitioner shall not commit an offence
similar to the offence of which he is accused,
or suspected, of the commission of which he is
suspected.
5. The petitioner shall strictly abide by the
various guidelines issued by the State
Government and Central Government with
respect to keeping of social distancing in the
wake of Covid 19 pandemic.
6. If any of the above conditions are
violated by the petitioner the jurisdictional
Court can cancel the bail in accordance to law,
even though the bail is granted by this Court.
P.V.KUNHIKRISHNAN, JUDGE
al/-+
