Abdul Ahad vs State Of Kerala
2022 Latest Caselaw 9210 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
  WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                    BAIL APPL. NO. 5146 OF 2022
       CRIME NO.684/2021 OF PARAPPANANGADI POLICESTATION
PETITIONER/3RD ACCUSED:

          ABDUL AHAD
          AGED 41 YEARS
          S/O ABDUL RASHEED, AMINAS HOUSE, POOVATTUMPARA,
          PERUVAYAL, KOZHIKODE DISTRICT - 673008
          BY ADVS.
          P.SAMSUDIN
          LIRA A.B.


RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM - 682031
          BY    PUBLIC PROSECUTOR SMT.SEETHA S.



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BA No.5146 of 2022                             2




                                VIJU ABRAHAM, J.
                .................................................................
                                B.A.No.5146 of 2022
                .................................................................
                  Dated this the 10th day of August, 2022

                                         ORDER

This is an application for regular bail.

2. The petitioner is the third accused in Crime No. 684 of 2021

of Parappanangadi Police Station, Malappuram district, alleging

commission of offences punishable under Section 22(c) and 29 of the

Narcotic Drugs and Psychotropic Substances Act.

3. The prosecution allegation is that on 11.12.2021 at about

6.10 PM, accused persons, 3 in number, were found riding a motor bike

bearing Registration No. 70 X 3997. On interception they were found in

possession of 29 grams, 24 grams and 6.50 grams of MDMA

respectively and thereby committed the aforesaid offences.

4. Learned counsel for the petitioner submitted that only 6.50

gms of MDMA was seized from the possession of the petitioner. The

petitioner was arrested on 11.12.2021 and is in custody since then.

Learned counsel further submitted that though the petitioner earlier

moved an application for bail before the Sessions Court, Manjeri, the

same was rejected as per Annexure-A2 order. Learned counsel further

submits that though all the accused were found to be carrying

contraband articles only 6.50 gms of MDMA was seized from the

possession of the petitioner. It is admittedly only an intermediate

quantity and therefore rigour under Section 37 of the NDPS Act will not

come into play and therefore he is entitled for bail taking into

consideration the long period of custody from 11.12.2021. Learned

counsel for the petitioner relies on the judgment of this court in Muthu

Kumar v. SHO [2008 (2) KLT 890] and also an unreported judgment of

this court in Ummer v. State of Kerala in BA No.7960/2022 dated

06.11.2021, wherein bail was granted in a similar case and requested

that the petitioner shall also be extended the same benefit granted in

those cases.

5. Learned Public Prosecutor seriously opposed the application

for bail mainly contending that the investigating officer on getting reliable

information that MDMA which is a narcotic drug is being transported in a

motorbike, the same was intercepted and when the search of the person

as well as the bag in their possession was conducted in the presence of

a gazetted officer, 29 gms of MDMA was found in possession of the 1st

accused, 24 gms of MDMA was found in the possession of the 2nd

accused and 6.50 gms of MDA from the possession of the petitioner, who

is the 3rd accused in the above crime. On verification of mobile phones

seized it revealed information regarding the alleged trade of MDMA.

Further on verification of the bank account of the accused it was found

that there are also monetary transactions between parties and that final

report is filed in the case alleging commission of offences punishable

under Section 22(c) and 29 of the NDPS Act, 1985 and the case is now

pending as S.C. No. 704/2022 before the Special Court for NDPS cases,

Manjeri. The learned public prosecutor further submitted that if the

petitioner is released on bail, there is every chance to threaten the

witnesses and also to get involved in offences of a similar nature.

6. Admittedly, the contraband was seized from the possession

of the petitioner and other accused while they were travelling in a

motorcycle. It is true that contraband was seized from the person of each

of the accused and that the quantity of narcotic drug seized from the

possession of the petitioner is 6.50 gms and the total quantity seized

from all the accused persons is a commercial quantity, whereby the rigor

of Section 37 of the NDPS Act will come into play. The question to be

considered is as to whether the petitioner is entitled to bail in the light of

the judgment in Muthu Kumar's case supra and Ummer's case supra

for the reason that petitioner was found in possession of only 6.50 gms

of MDMA. The learned public prosecutor submitted that though only 6.50

gms of MDMA was seized from the individual possession of the

petitioner, there are materials revealed in the investigation that the

accused have jointly transported the total quantity of contraband and it is

in the said circumstance that Section 29 of the NDPS Act is also alleged

against the petitioner and other accused persons. A perusal of the

judgments relied on by the petitioners clearly shows that the offences

alleged against the petitioners therein are only under Section 20(b)(ii)(C)

which prescribes punishment of transportation, possession, etc. of

contraband involving commercial quantity whereas Section 29 is invoked

in cases where there is abetment and criminal conspiracy to commit the

offence. In Muthu Kumar's case supra and Ummer's case supra, the

court was not considering a case involving Section 29 of the NDPS Act.

These judgments were rendered on the facts and circumstances

obtaining therein. But in the present case, the specific case of the

prosecution is that the total quantity of contraband was in possession of

all the accused including the petitioner and he has a specific role in the

commission of the offence and therefore cannot be treated as a person

who was in possession of only an intermediate quantity as projected by

the petitioner. As submitted by the learned Public Prosecutor, the call

records and account details reveal constant contact and monetary

transactions between the accused. It is also pertinent to note that all the

accused were travelling in a motorcycle when they were apprehended

and on search, commercial quantity of contraband was seized from

them. It is a further case of the prosecution that the contraband was

seized from the petitioner from the bag in his possession along with a

smoke glass pipe. In view of the above, I am of the opinion that the

decisions relied on by the petitioner is not applicable in the facts and

circumstances of the present case. Further, the Apex Court in Union of

India through Narcotics Control Bureau, Lucknow v. MD. Nawaz

Khan, (2021) 10 SCC 100 after going through various judgments on the

issue of possession of contraband has held that even in cases where the

contraband was not seized from person of the accused will not absolve it

to the level of scrutiny required under Section 37 of the NDPS Act.

8. This is a case where commercial quantity of narcotic drugs is

involved and the jurisdiction of the court to grant bail is circumscribed by

the provisions of Section 37. On a consideration of the facts and

circumstances of the case, I do not find that any substantial contention

has been raised by the petitioner that the twin conditions laid on in

Section 37 of the Act is satisfied so as to entitle the petitioner to bail.

9. I find that the petitioner is custody from 11.12.2021 and the

charge sheet is already laid. Taking these aspects into consideration,

there will be a direction to the Special Court for NDPS cases, Manjeri to

expedite the trial of S.C. No.704 of 2022 and dispose of the same

without much delay, preferably within an outer limit of 6 months.

With the above said limited direction, the bail application is

dismissed.

Sd/-

VIJU ABRAHAM JUDGE

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