Kerala High Court
Unni @ Sajith vs State Of Kerala on 19 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
BAIL APPL. NO. 600 OF 2024
CRIME NO.352/2022 OF KURUPPAMPADY POLICE STATION, ERNAKULAM
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.1127 OF 2022 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM / IV
ADDITIONAL MACT, ERNAKULAM
PETITIONER/ACCUSED NO.3:
UNNI @ SAJITH, AGED 41 YEARS S/O
SIVADASAN,PUTHUVAIPARAMBU HOUSE, NOW RESIDING AT NEAR
CHATHAVELIPADAMBHAGAM,C/O JOHNSON, KAKKANAD NGO
QUARTERS KARA, THRIKKAKARA NORTH VILLAGE, ERNAKULAM,
PIN - 682030
BY ADV ANITHA MATHAI MUTHIRENTHY
RESPONDENT/STATE:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH
COURT OF KERALA, PIN - 682031
PP - AJITH VISWANATHAN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Bail Appl No. 600 of 2024 :2:
VIJU ABRAHAM , J.
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Bail Appl No. 600 of 2024
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Dated this the 19th day of April, 2024
ORDER
The above bail application has been placed before this Court as
per order dated 14.02.2024 by another learned Single Judge based
on the Apex Court judgment in Kusha Duruka v. State of Odisha
[(2024) 1 KHC 389].
2. The application is filed under Section 439 of the Code of
Criminal Procedure, 1973 by the 3rd accused in Crime No.352/2022 of
the Kuruppampady Police Station, Ernakulam, registered against the
accused (eight in number) for allegedly committing the offences
punishable under Sections 29, 27A, 8(c) r/w 20(b)(ii)(C) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (in short,
"Act"). The petitioner was arrested on 22.05.2022.
3. The gist of the prosecution case is that the accused in
furtherance of their common intention hatched a conspiracy and the
1st accused was found in possession of 248.165 kilograms of dry
ganja. On the basis of the confession made by the 1 st accused, the
3rd accused was arraigned in the crime. It is revealed in the
investigation that, the 3rd accused had gone to Orissa and collected
the contraband article from the 8th accused. There are materials to
substantiate that there were communications between accused and
also the financial transactions. Thus, the accused have committed
the above offences.
4. The learned counsel for the petitioner would submit that
the petitioner is totally innocent of the acccusations leveled against
him and that he has been falsely implicated based on the confession
statement made by the 1st accused. Petitioner submits that he is in
custody from 22.05.2022 onwards and the investigation is complete
and final report has been laid.
5. The learned Public Prosecutor opposed the application for
bail and contends that there is sufficient materials to prove that the
petitoner is involved in the above said crime and that the
investigation revealed that, it is the petitioner who went to Orissa
and collected the contraband articles from the 8 th respondent. The
learned Public Prosecutor also brought to my notice that the
petitioner has several call contacts with accused Nos.1 and 2 and
that the petitioner and the 1st accused has stayed in a lodge in
Orissa in connection with the commission of the offence. It is further
contented that the quantity involved is 248.165 kilograms of ganja
and that, if petitioner is let off on bail there is every chance for him
to commit a similar offence and therefore the application may be
dismissed.
6. This Court has considered the bail application submitted
by the petitioner as per Annexure A1 order and rejected the same
specifically taking note of the specific overt act of the petitioner and
that he is the one who went and collected the contraband articles
from Orissa which is of commercial quantity. The petitioner has taken
an alternative contention in the bail application based on the
provisions of the Narcotic Drugs and Psychotropic Substances
(Seizure, Storage and Sampling and Disposal) Rules, 2022 and
alleged procedural violation. I am afraid the said contention cannot
be accepted while considering the bail application, in as much as the
Rules came into force only on 23.12.2022, whereas the alleged
seizure and arrest was on 15.4.2022. Further, Section 52A only
speaks about the disposal of seized Narcotic Drugs and Psychotropic
Substances, and that the inventory prepared and the photograph of
narcotic drugs or conveyances and any list of samples drawn as per
the provisions of Section 55 (a) of the NDPS Act, 1985 certified by
the Magistrate shall be taken as primary evidence in respect of such
offence.
7. Yet another contention taken is regarding mixing of the
contraband before taking sample. The Apex Court in Sumit Thomar
v. State of Punjab [(2012) 4 KLT SN 117] has considered a
similar contention regarding the mixing of contraband found in the
bags and taking samples thereafter, and negating the contentions of
the appellant therein and held in paragraph 10 as follows:-
"10) The next contention, according to the learned senior
counsel for the appellant, is that the prosecution has
committed an irregularity by mixing up the contraband found
in the bags and taking samples thereafter. We find no
substance in the said argument. The present appellant was
driving the car in which two bags of contraband were loaded.
He further pointed out that in view of Section 15 (c) of the
NDPS Act, which prescribes minimum sentence of 10 years
and which may extend to 20 years where the contravention
involves commercial quantity, the mixing of two bags is a
grave irregularity which affects the interest of the appellant.
We are unable to accept the said contention. It is true that
Section 15 of the NDPS Act speaks about punishment for
contravention in relation to poppy straw. As per sub-section
(a) where the contravention involves small quantity, the
rigorous imprisonment may extend to six months or with fine
which may extend to ten thousand rupees or with both
whereas under sub-section (b) where the contravention
involves quantity lesser than commercial quantity but
greater than small quantity, rigorous imprisonment may
extend to 10 years and with fine which may extend to one
lakh rupees. Sub-section (c) provides that where the
contravention involves commercial quantity, the rigorous
imprisonment shall not be less than 10 years but which may
extend to 20 years and shall also be liable to fine which shall
not be less than one lakh rupees but which may extend to
two lakh rupees. Merely because different punishments have
been prescribed depending on the quantity of contraband,
we are satisfied that by mixing the said two bags, the same
has not caused any prejudice to the appellant. Even after
taking two samples of 250 grams each, the quantity
measured comes to 69.50 kgs which is more than
commercial quantity (small quantity 1000 gms/commercial
quantity 50 kgs. and above). In view of the same, the
contention that the police should have taken two samples
each from the two bags without mixing is liable to be
rejected."
In view of the above facts and circumstances of the case and
taking into consideration the active role of the petitioner, the
quantity involved and further that the bail application submitted by
the petitioner has been rejected as per Annexure A1 order, and in
view of Section 37 of the NDPS Act, I am not inclined to grant bail to
the petitioner. The trial Court shall take all endeavour to expedite
the trial of the case and if there is unreasonable delay in completing
the trial of the case, the petitioner will be free to approach this Court
again seeking bail.
The above bail application is accordingly dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
