Akash vs State Of Kerala
2021 Latest Caselaw 12298 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

      FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943

                    Bail Appl..No.2652 OF 2021

     CRIME NO.41/2020 OF Ernakulam E.E & A.N.S.S. , Ernakulam


PETITIONER/ACCUSED :-

             AKASH
             AGED 20 YEARS
             SON OF PRAKASH, ANUGHRAHA HOUSE,
             PALIUMNADA KARA, CHENDAMANGALAM P.O,
             NORTH PARAVOOR
             ERNAKULAM, PIN - 683513

             BY ADVS.
             SHRI.K.NIRMALAN
             SRI.BIJU ANTONY THEKKANATH
             SRI.T.R.KRISHNADAS
             SHRI.RAHUL R.PAI
             SMT.ANNA LINDA V.J
             SRI.ANAND B. MENON
             SMT.SHIMI MOHAN

RESPONDENTS :-

      1      STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA
             ERNAKULAM, PIN - 682031

      2      INSPECTOR OF EXCISE
             EXCISE ENFORCEMENT AND ANTI NACOTIC SQUARD,
             ERNAKULAM




             P.P.SMT.M.K.PUSHPALATHA

     THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07.05.2021,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Bail Appl..No.2652 OF 2021

                                    2




                     P.V.KUNHIKRISHNAN, J
                    -----------------------------------------
                     B.A.No.2652 of 2021
                   ---------------------------------------
               Dated this the 7th day of May, 2021


                              ORDER

This Bail Application is filed under Section 439 of

Criminal Procedure Code was heard through Video Conference.

2. The petitioner is the second accused in crime No.41/2020

of Excise Enforcement and Anti Narcotic Special Squad, Ernakulam.

Above case is registered against the petitioner alleging offence

punishable under Sec.22(C), 20(b)(ii) A and 29 of the NDPS Act.

3. The prosecution case is that on 8.12.2020 at 7.45 pm, the

petitioner was found in possession of 0.4171 gms of LSD stamps (25

nos.), 28.7501 gms (100 nos.) MDMA and 20 gms of ganja at the office

room of DTDC courier company, Paravur franchisee along with the 1 st

accused in the crime in violation of NDPS Act and Rules. It is alleged

that the accused No.3 in the crime send the contraband item through

courier from Goa and the 1st and 2nd accused received the same for the

purpose of sale. The petitioner was arrested on 8.12.2020.

4. Heard counsel for the petitioner and the Public Prosecutor. Bail Appl..No.2652 OF 2021

I am considering this bail application in a situation where the 2 nd

wave of COVID-19 is affected the entire Kerala. The 2 nd wave of

COVID-19 is spreading in the country and the citizens are facing

serious difficulties. In the state of Kerala, the 2 nd wave of pandemic is

creating lot of problems and even the day-to-day life of the citizens are

affected. The state of Kerala declared a lock down from tomorrow

onwards. Everyday about 30,000 to 35,000 people are tested positive

with COVID-19. Life is more than anything. I am considering this bail

application in the light of the above circumstances.

5. The counsel for the petitioner submitted that the first

accused is already released on bail by this Court as per order dated

04.05.2021 in B.A.No3577/2021. The counsel submitted that even if

the entire allegations in the final report is accepted, the prosecution

has no case that the petitioner was in conscious possession of the

contraband article. The counsel takes me through the 3 rd paragraph in

page 5 of the final report, in which, it is stated that the first accused

misused the name of the petitioner. The counsel submitted that the

petitioner was not in conscious possession of the contraband article

even if the prosecution case is accepted in toto. The counsel also

submitted that even if the allegations against the petitioner are

accepted, in the light of the principles laid down by this Court in Bail Appl..No.2652 OF 2021

B.A.No.3577 of 2021, the petitioner who is the second accused is also

entitled bail.

6. The learned Public Prosecutor very seriously opposed the

bail application. The Public Prosecutor submitted that huge quantity

of MDMA pills and LSD Stamps were seized from the petitioner and

the other accused. The prosecutor submitted that in the light of the

principles laid down by the Apex Court in Heera Singh and

another v. Union of India (Crl.A.No.722/2017), the point

raised by the first accused in the other bail application will not stand.

The learned Public Prosecutor cited several decisions of the Apex

Court and this Court to show that, this Court need not consider the

merits of the case while considering a bail application.

7. It is a fact that the final report in this case is already filed

long back. The petitioner was arrested on 08.12.2020. When the final

report is filed the analyst report was not available. Even now the same

is not obtained. No criminal antecedents is alleged against the

petitioner. This Court allowed the bail application of the first accused

as per order dated 04.05.2021. The relevant portion of the order is

extracted hereunder.

"5. It is true that the allegation against the petitioner is very serious. But the petitioner is in custody from 8.12.2020 onwards. In the bail application, a specific contention is raised about the quantity of Bail Appl..No.2652 OF 2021

the contraband seized from the petitioner. Para 7 of the bail application is extracted hereunder:

"Without prejudice to the contentions stated above, it is submitted that the contrabands allegedly seized will not go beyond intermediary quantity. Out of the total contrabands seized, it is alleged that 28.7501 grams of MDMA pills and 0.4171 grams of LSD stamp were seized from the parcel which came through courier and 20 grams of ganja was seized from the possession of the petitioner. As per item No.134 of the table in the NDPS Act, the small quantity of MDMA is 0.5 gram and the commercial quantity is 10 gram. So it is alleged that 28.7501 grams of MDMA pills is commerial quantity. The weight of the actual MDMA and the capsule shell which contained the MDMA were taken together while calculating the weight. It is highly illegal. The MDMA seized was in the form of pills/capsules. The capsule shell is an outer skin in which medicinal substance is contained. The capsule shells are made of gelatin and it dissolve in the mouth. Once the weight of capsule shell is separated, the actual weight of the MDMA can be ascertained and if so, it will be below intermediary quantity. As per item No.133 of the table in the NDPS Act, the small quantity of LSD is 0.002 gram and the commercial quantity is 0.1 gram. It is alleged that 0.4171 gram of LSD stamp is commercial quantity. The weight of the actual LSD and the papers containing dried LSD drops of LSD solution were taken together while calculating the weight. It is highly illegal. The LSD seized was in the form of stamp and not in crystal form. If the weight of the papers is excluded, the actual weight of the LSD can be ascertained and if so, it will come below the intermediary quantity."

6. The counsel relied on Annexure-A2 order of this Court in which this Court observed that it is an arguable point which is to be decided by the trial court. The relevant portion of the order dated 8.3.2021 in BA No.1718/2021 is extracted hereunder :

"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 B.A.No.1718 of 2021 6 trial.

Bail Appl..No.2652 OF 2021

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 Bail Appl..No.2652 OF 2021

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 Bail Appl..No.2652 OF 2021

against the petitioner, I think this bail application can be allowed on stringent conditions."

7. I don't want to make any observation about the merit of this case. The contention raised by the petitioner is to be decided by the trial court at the appropriate stage. Considering the fact that the petitioner is in custody from 8.12.2020 onwards, I think the petitioner can be released on bail on stringent conditions".

8. In the light of the above order, I see no reason to deny

bail to the petitioner also. It is true that the allegations as on today

against the petitioner is that he was found in possession of

commercial quantity of narcotic drugs. According to the petitioner,

the actual quantity is below the commercial quantity prescribed as

per the NDPS Act. But as on today the analyst report is also not

received. The prosecution is free to file a petition to cancel the bail,

after getting the analyst report, if they are advised so. If the quantity

is a commercial quantity. As on today, according to me, the

petitioner is also entitled bail. With the above observations, I think

bail can be allowed.

9. 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 Bail Appl..No.2652 OF 2021

of 2020 issued various salutary directions for minimizing the number

of inmates inside prisons. These happened during the 1 st wave of

COVID-19 season.

10. 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.

11. 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 Bail Appl..No.2652 OF 2021

before the Investigating Officer for

interrogation as and when required. The

petitioner shall co-operate with the

investigation and 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.

Bail Appl..No.2652 OF 2021

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.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SMA