Jagath Ram Joy vs State Of Kerala, Represented By ...
2022 Latest Caselaw 4719 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
     TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
                      BAIL APPL. NO. 2530 OF 2022
       [CRIME NO.17/2022 OF EXCISE RANGE OFFICE, ERNAKULAM]


PETITIONER/ACCUSED:

            JAGATH RAM JOY,
            S/O.JOY RAMACHANDRAN, AGED 21 YEARS,
            KOTTAVACHAVILA HOUSE, AYIROOR.P.O., VARKALA,
            THIRUVANANTHAPURAM.

            BY ADV.SRI.SUMAN CHAKRAVARTHY



RESPONDENT/COMPLAINANT:

            STATE OF KERALA,
            REPRESENTED BY ITS PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM - 682 031.

            BY ADV.SMT. SEENA C-PP


     THIS   BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
26.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 BAIL APPL. NO. 2530 OF 2022
                                -2-

                               ORDER

This is an application filed u/s 439 of Code of Criminal

Procedure seeking regular bail.

2. The petitioner is the accused in Crime

No.17/2022 of the Excise Range Office, Ernakulam. The

offence alleged is under Section 22(c) of the Narcotic Drugs

and Psychotropic Substances Act, 1985 ('NDPS Act', for

short)

3. The prosecution case in short is that on

01.03.2022 at about 11 P.M., the petitioner was found in

possession of 0.3868 gms of LSD stamp for sale in

contravention of the NDPS Act and Rules and thereby

committed the aforesaid offence.

4. Heard Sri.Suman Chakravarthy, the learned

counsel for the petitioner and Smt.Seena C., the learned

Public Prosecutor and perused the case diary.

5. The learned counsel for the petitioner, to get over

the rigour of Section 37 of the NDPS Act, has raised before BAIL APPL. NO. 2530 OF 2022

me the following two points:

(i) The weight of the LSD shown in the

Mahazar as 0.3868 gms is inclusive of the weight of

the stamps. According to the learned counsel, if the

LSD alone is taken, it would be a small quantity. In

support of his submissions, the learned counsel

relied on the decision of the Bombay High Court in

Hitesh Hemant Malhotra v. State of

Maharashtra [(2021) 3 MhLJ(Crl) 78] dated

07.12.2020 as well as the three decisions of this

Court in Bail Application Nos.1718/2021 dated

08.03.2021, 2652/2021 dated 07.05.2021 and

3577/2021 dated 04.05.2021.

(ii) There is contravention of Section 50 of

the NDPS Act.

6. Per contra, the learned Public Prosecutor

submitted that the contraband was seized from the

possession of the petitioner and that the materials on BAIL APPL. NO. 2530 OF 2022

record would clearly show that it is a commercial quantity

and the bar under Section 37 of the NDPS Act would get

attracted.

7. I have perused the records. The Mahazar would

show that, on getting prior information that the petitioner

was carrying LSD stamps, the Excise Inspector went to the

scene of occurrence and on seeing the Excise Party, the

petitioner perplexed and on questioning, he admitted that

he was having possession of LSD stamps. Thereafter, the

petitioner voluntarily took the purse from his pocket,

opened it and took 20 numbers of LSD stamps and handed

them over to the Excise Inspector who, after being

convinced that it was LSD stamps, seized the same.

Thereafter, the Excise Inspector asked the petitioner

whether he required the presence of the Magistrate or

Gazetted Officer to conduct his body search and the

petitioner answered in the negative. Still, the Excise

Inspector secured the presence of a Gazetted Officer, and in BAIL APPL. NO. 2530 OF 2022

his presence, the body search of the petitioner was

conducted in compliance of Section 50 of the NDPS Act and

on such search, no contraband substance was found in his

body. Thus, admittedly, before seizure of the LSD stamps

from the possession of the petitioner, Section 50 of the

NDPS Act was not invoked. When the petitioner disclosed

to the Excise Inspector that he had kept the LSD stamps in

his purse, the Excise Inspector ought to have given an

option to the petitioner to seek the presence of either the

Gazetted Officer or the Magistrate in compliance of Section

50 of the NDPS Act. Here, the option was given to the

petitioner to secure the presence of the Gazetted Officer or

the Magistrate only after seizure was made. Thus, I find

some force in the argument of the learned counsel for the

petitioner that there is violation of Section 50 of the NDPS

Act.

8. As to the question whether the quantity involved

is a commercial quantity or not, the Mahazar would show BAIL APPL. NO. 2530 OF 2022

that the weight shown in it is inclusive of the weight of the

stamps. According to the learned counsel for the petitioner,

if the LSD alone is taken, it will be below the small quantity.

In the decision of the Bombay High Court in Hitesh

Hemant Malhotra (supra), relied on by the petitioner, it

was observed as follows:

"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 BAIL APPL. NO. 2530 OF 2022

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 BAIL APPL. NO. 2530 OF 2022

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. The Bombay High Court has also considered the

decision of the Supreme Court in Hira Singh & Another v.

Union of India [2020 (2) KHC 551]. After going

through the judgment of Bombay High Court, I am of the

view that an arguable point has been raised by the

petitioner. The dictum laid down in Hitesh Hemant

Malhotra (supra) has been followed by another single

Bench of this Court in the three decisions mentioned above. BAIL APPL. NO. 2530 OF 2022

For all these reasons, I hold that the rigour of Section 37 of

the NDPS Act would not get attracted as against the

petitioner. The petitioner is a B.Tech Student. He has no

criminal antecedents. The learned counsel for the petitioner

submitted that his examination is due on May, 2022.

Considering all these aspects, I am of the view that this is a

fit case where the petitioner can be released on bail.

10. It is made clear that the observations made

above as to Section 50 of the NDPS Act and also as to the

quantity of the contraband seized are only for the limited

purpose of deciding this bail application.

In the result, the application is allowed on the

following conditions:-

(i) The petitioner shall be released on bail on

executing a bond for `1,00,000/- (Rupees One lakh only)

with two solvent sureties for the like sum each to the

satisfaction of the jurisdictional Magistrate/Court.

(ii) The petitioner shall fully co-operate with the BAIL APPL. NO. 2530 OF 2022

investigation.

(iii) The petitioner shall appear before the

investigating officer between 10.00 a.m and 11.00 a.m on

every Saturday until further orders. The petitioner shall also

appear before the investigating officer as and when

required by him.

(iv) The petitioner shall not commit any offence of

like nature while on bail.

(v) The petitioner shall not make any attempt to

contact any of the prosecution witnesses, directly or

through any other person, or any other way try to tamper

with the evidence or influence any witnesses or other

persons related to the investigation.

(vi) The petitioner shall not leave State of Kerala

without the permission of the trial Court.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE akv