IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6192 of 2009()
1. SHIBU M.R., S/O.RAJAPPAN
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... 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.
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B.A. No. 6192 of 2009
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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,
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 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
2
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
3
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
4analysis 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
B.A. No. 6192 /2009
5
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
6
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
7
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
scm
