Shibu M.R. vs The State Of Kerala on 26 October, 2009

Kerala High Court
Shibu M.R. vs The State Of Kerala on 26 October, 2009




Bail Appl..No. 6192 of 2009()

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.BABU S. NAIR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :26/10/2009

 O R D E R
                       K.T. SANKARAN, J.
                    B.A. No. 6192 of 2009
             Dated this the 26th day of October, 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. 5 in

Crime No.479/2009 of Perinthalmanna Police Station,


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 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

B.A. No. 6192 /2009

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

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 petitioner filed B.A. No.4727/2009, which was

dismissed by the order dated 16/9/2009. Thereafter, he filed

another application, namely, B.A. No.5577/2009, which was also

B.A. No. 6192 /2009

dismissed by the order dated 9/10/2009.

5. 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 [B.A. No.5251/2009].

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 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

B.A. No. 6192 /2009

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


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

B.A. No. 6192 /2009

quantity 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

B.A. No. 6192 /2009

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 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.”

6. 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.

7. 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;

B.A. No. 6192 /2009

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),

D) The petitioner shall not try to influence the
prosecution witnesses or tamper with the

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.



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