Kerala High Court

Muhammed Musthafa vs State Of Kerala on 7 May, 2021

             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.2701 OF 2021

  CRIME NO.12/2020 OF Nilambur Excise Range Office , Malappuram


PETITIONER/ACCUSED :-

             MUHAMMED MUSTHAFA
             AGED 21 YEARS
             C.O IBRAHIM, PALAKKAL HOUSE,
             KARUPPINPADI, IRINGAVOOR P.O,
             MALAPPURAM DISTRICT
             PIN - 676103

             BY ADVS.
             SRI.P.T.SHEEJISH
             SMT.AKHILA SRIDHARAN

RESPONDENT/STATE :-

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




             SR.P.P.SRI.C.N.PRABHAKARAN

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION           ON
07.05.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Bail Appl..No.2701 OF 2021

                                 2


                   P.V.KUNHIKRISHNAN, J
                      --------------------------------
                     B.A.No.2701 of 2021
                       -------------------------------
               Dated this the 7th day of May, 2021


                             ORDER

This Bail Application filed under Section 439 of Criminal

Procedure Code was heard through Video Conference.

2. The petitioner is one of the accused in Crime No.12/20

of Nilambur Excise Range. The above case is registered against

the petitioner and the other accused alleging offences punishable

under Sections 22(C), 20(b)(ii)A, 25 and 29 of Narcotic Drugs and

Psychotropic Substances Act (NDPS Act).

3. The prosecution case is that on 19.02.2020 the

petitioner and the other accused were found in possession of 56.64

gms 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,

Vazhikadavu. The petitioner and the accused were arrested on

19.02.2020.

4. Heard the counsel for the petitioner and the Public

Prosecutor. The counsel for the petitioner submitted that the

petitioner was originally granted bail by the lower court as per Bail Appl..No.2701 OF 2021

Annexure-1 order. Subsequently, that order was challenged by the

State before this Court by filing Cr.M.C.No.3379/2020 and this

Court was pleased to set aside the same and thereafter the

petitioner surrendered before the lower court. The counsel

submitted that as per Annexure-3 order dated 08.03.2021 in

B.A.No.1718/2021 this Court granted bail to one of the accused

after considering the entire facts and circumstances. The counsel

submitted that the petitioner also may be given the same benefit.

The Public Prosecutor opposed the bail application. The Public

Prosecutor submitted that the contraband seized from the

petitioner is commercial quantity and therefore this Court may not

release the petitioner at this stage.

5. One of the accused filed bail application before this

Court in the above case and this Court considered the bail

application in detail. After hearing both sides, this Court allowed

the bail application. Annexure-3 is the order. Relevant portion is

extracted below:

"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 Bail Appl..No.2701 OF 2021

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-

Bail Appl..No.2701 OF 2021

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

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 Bail Appl..No.2701 OF 2021

of the Apex Court, has no application to the facts of this case.

10. 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.

11. 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.

12. 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 Bail Appl..No.2701 OF 2021

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

I see any reason to deny bail to the petitioner in the light of

the above order passed in favour of a co-accused. I think the point

raised by the petitioner is to be considered in detail. The

continued detention of the petitioner is not necessary, especially in

the light of Annexure-A3 order.

6. Moreover, the 2nd wave of COVID-19 is spreading in the

country and the citizens are facing serious difficulties. In the state

of Kerala, the 2nd wave of the pandemic is creating lot of problems

and even the day-to-day life of the citizens are affected. Everyday,

about 25,000 people are tested positive with COVID-19. In such

circumstances, this Court has to consider this fact also while

considering bail applications. The life is more important than

anything. Therefore, I am considering this bail application based on

the above pandemic situation.

7. 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 Bail Appl..No.2701 OF 2021

minimizing the number of inmates inside prisons. These happened

during the 1st wave of COVID-19 season.

8. 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.

9. 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 co-operate

with the investigation and shall not, directly or Bail Appl..No.2701 OF 2021

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 any

offence similar to the offence alleged in this