IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6709 of 2009()
1. ABDU @ ABDUL MAJEED,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. STATE REP. BY PUBLIC
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :16/11/2009
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 6709 OF 2009
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Dated this the 16th day of November, 2009
O R D E R
This is an application for bail under Section 439 of
the Code of Criminal Procedure. The petitioner is accused
No.2 in Crime No.479 of 2009 of Perinthalmanna Police
Station, Malappuram.
2. The offences alleged against the petitioner are
under Sections 21(b)(ii)(C) and Section 29 of the Narcotic
Drugs and Psychotropic Substances Act.
3. The prosecution case is as follows:
On 28/7/2009, the police got secret information that
sale of Narcotic Drugs was being made in a lorry parked
near the side of Perinthalmanna-Pandikad road. The police
party reached the spot. Accused Nos.1 to 3 were found
inside the lorry and accused Nos.4 and 5 were found outside
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the lorry. A quantity of 485 grams of Brown sugar was
found in the possession of the first accused and a quantity
of 452 grams of Brown Sugar was found in the possession
of the second accused. Accused Nos.3, 4 and 5 were having
possession of one gram each of Brown Sugar . The accused
persons were arrested on 28/7/2009. The investigation
reveals that Brown Sugar was brought from Ujjain and it
was intended for sale in Kerala. The packets containing one
gram each found in the possession of accused Nos.3, 4 and
5 are sample packets. According to the prosecution, all the
accused are involved in the offence in the same way and the
offence against them is to be treated as offence involving
commercial quantity. It is alleged that the first accused,
Abdul Azeez, was convicted for an offence in Saudi Arabia
and he was in jail in Jiddah for a period of about two years
and he was later deported to India. The second accused
Abdu @ Abdul Majeed was involved in a drug case and he
was convicted and sentenced by a court in Bombay. The
second accused was in jail for about five years. It is alleged
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that other accused are close associates of accused Nos.1
and 2 and all of them acted for the same object of the sale
of large quantity of Brown Sugar.
4. The learned Public Prosecutor opposed the Bail
Application. The learned counsel for the petitioner submits
that the quantitative analysis of the contraband was not
done and therefore the continued detention of the petitioner
after 60 days of the date of arrest is not legal and proper.
He relies on the decision in K. K. Ashraf Vs. State of
Kerala (2009(4) KLT 399 = 2009(4) KHC 449). In that
case, it was held as follows:
‘In E.Micheal Raj’s case, the Supreme
Court considered the statement of objects and
reasons concerning the Amendment Act of 2001
and also the rationalisation of sentence structure
and providing strict bail provisions in respect of
offenders who indulge in serious offences. In
view of the judgment in E.Micheal Raj’s case,
the prosecution has to establish that the narcotic
B.A. NO. 6709 OF 2009
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drug or psychotropic substance constitutes the
commercial quantity in order to attract Section
21(c) of the Act. In the present case, though
the sample was sent for quantitative analysis
within few days of seizure, report is not obtained
so far. This Bail Application was being adjourned
on several occasions providing maximum time to
the prosecution to make available the FSL report.
Till now the report is not obtained. Therefore,
there is no material before the court to come to
the conclusion that the contraband involves
commercial quantity.
Learned Public Prosecutor submitted that
the requirement of proof that the content of the
narcotic drug in the contraband constitutes
commercial quantity arises only at the trial stage
and it has no relevance while considering the
Bail Application. I am not inclined to accept this
contention in view of the specific provisions in
the Act. In order to attract Section 21(c) of the
Act, there must be material to show that
commercial quantity is involved. Such material
could normally be provided after a quantitative
analysis is made. Of course, when the quantity
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involved is so large that even without any
quantitative analysis it could be inferred that the
contraband constitutes a commercial quantity,
the position may be different. But in the present
case, the quantity involved is only 500 grams. It
cannot be inferred that the content of the
narcotic drug in the contraband constitutes
commercial quantity. That there occurs delay in
getting the quantitative analysis report is not a
ground to invoke sub-section (4) of Section 36A
of the Act on the ground that the contraband
involves commercial quantity. Unless there are
materials to indicate that commercial quantity is
involved, the court cannot apply sub-section (4)
of Section 36A of the Act simply because an
allegation is made without any material that
commercial quantity is involved.
When the law is clear and it has been
interpreted by the Supreme Court in E.Micheal
Raj’s case, it is not a consolation at all to the
accused who has been incarcerated in jail that
the report from FSL is not received. When the
law provides severe punishment for drug
trafficking and allied offences, there must be
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sufficient infrastructural facilities for
implementing the Act and the provisions therein.
The freedom of citizen cannot be denied only on
the ground that we do not have the sufficient
infrastructural facilities to prove before Court
without delay that the contravention involves
commercial quantity of the narcotic drug.”
5. In view of the Judgment in K.K. Ashraf Vs.
State of Kerala, I am of the view that the petitioner is
entitled to get bail in the present case.
6. The petitioner shall be released on bail on his
executing bond for Rs.50,000/- with two solvent sureties
each for the like amount to the satisfaction of the Special
Court (N.D.P.S. Act cases), Vadakara subject to the
following conditions:-
A) The petitioner shall appear before the
Investigating Officer between 9 A.M. and 1
P.M. on all Mondays, till the final report is
filed or until further orders;
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B) The petitioner shall surrender his passport,
if any, before the Special Court (N.D.P.S Act
cases), Vadakara. If the petitioner does not
possess a passport, an affidavit to that
effect shall be filed before the court. The
surrender of the passport and the filing of
the affidavit, as the case may be, shall be
done within a period of one week after the
release of the petitioner from the jail;
C) The petitioner shall not leave the State of
Kerala without prior permission from the
Special Court (N.D.P.S Act cases),
Vadakara;
D) The petitioner shall not try to influence the
prosecution witnesses or tamper with the
evidence;
E) The petitioner shall not commit any offence
or indulge in any prejudicial activity while
on bail;
F) In case of breach of any of the conditions
mentioned above, the bail shall be liable to
be cancelled.
The Bail Application is allowed as above.
(K.T.SANKARAN)
Judge
ahz/