Kerala High Court
Nithin Thomas vs State Of Kerala on 25 August, 2020
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
Bail Appl.No.5209 OF 2020
CRIME NO.8/2020 OF Kaduthuruthy Excise Range Office , Kottayam
PETITIONER/S:
NITHIN THOMAS
AGED 19 YEARS, SON OF THOMAS C.M,
MUKALEL PARAMBIL HOUSE, MEMMURI P.O,
MANJOOR, VAIKOM, KOTTAYAM DISTRICT- 686603.
BY ADV. SRI.NIREESH MATHEW
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682031.
OTHER PRESENT:
SRI.AMJAD ALI SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.5209 of 2020
-2-
O R D E R
Dated this the 25th day of August 2020 This is an application for regular bail under Section 439 of Cr.P.C.
2. The applicant is the 2nd accused in Crime No.8/2020 of Kaduthuruthy Excise Range for having allegedly committed the offences punishable under Sections 22(c) and 25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act").
3. The prosecution case in brief is that on 31.05.2020 at about 11.00 AM on getting a tip of from an informant, the Excise Inspector and his party of the Excise Range at Kaduthuruthy intercepted the applicant and the 1st accused while they were riding on a motor cycle bearing Reg.No.KL-01-BJ-3796 at Thalapara Road. After appraising them about the suspicion entertained by the Excise party about their being in possession of narcotic drugs and psychotropic substances, they were subjected to inspection after informing them about their right to get the inspection done in the presence of a Gazetted Officer, and accordingly, an officer of B.A.No.5209 of 2020 -3- the Excise Department was called for to witness the inspection. Four LSD stamps weighing 66 mg. were recovered from the body of the 1st accused; while the applicant, who was a pillion rider, was in possession of one LSD stamp weighing 16.5 mg. Thereafter, on questioning the 1st accused, he gave a statement that he is in possession of more such LSD stamps at his home, and accordingly, his house was searched and 9 more LSD stamps were recovered, having a weight of 148.5 mg. The accused were thus in possession of commercial quantity of LSD stamps.
4. Applicant states that he is innocent and the allegations against him is false. It is also stated that no independent Gazetted Officer was called for to witness the inspection of the accused persons as required under the Section 50 of the Act. It is also stated that Section 37 of the Act is not attracted in the instant case, because the applicant was only in possession of 16.5 mg. of LSD stamp, which falls below the intermediary quantity and even if the stamps in the possession of the 1st accused is also taken into account, they were not in possession of commercial quantity of LSD stamps. Only on adding up the LSD stamps recovered from the house of the 1 st accused, B.A.No.5209 of 2020 -4- could it be said that they were in possession of commercial quantity of LSD stamps. The applicant was not in knowledge of having stamps stored at the house of the 1st accused and he cannot be made responsible for such recovery.
5. Heard the learned Counsel for the applicant and the learned Public Prosecutor.
6. The learned Counsel submits that the applicant is a young man aged only 19, hardly out of his juvenility, and belongs to a good family. Unfortunately, he happened to be implicated in this crime in which his friend, the 1st accused, was also involved. The applicant submits that it is an official of the Excise Department was called to witness the body search of the accused in this crime, which may not be proper, relying on the decision of the Hon'ble Supreme Court in State of Rajsthan v. Parmanand & another, 2014 KHC 4138. Because, it specifically states that the officer should be an independent Gazetted Officer. The learned Counsel has pointed out that the officer, who called upon to witness the search under Section 50 of the Act had even accompanied the detecting officer to the house of the 1st accused to witness the search of the house and recovery of the LSD stamps from there. B.A.No.5209 of 2020 -5- This itself indicates that he is an interested witness and was actually a part of the investigation team. Further it is submitted that the applicant is young boy having no criminal antecedents and that the contraband seized from him and the 1st accused is to be considered separately to calculate the quantity involved. The learned Counsel relies on the Division Bench decision of this Court in Muthu Kumar & others v. Station House Officer, 2008 (2) KHC 592, wherein the finding is that when the accused and co-accused are found to be together in possession of large quantity of Ganja, unless there is evidence regarding collaboration, possession of each individual accused has to be taken separately for the purpose of calculating the quantity and if it is not commercial quantity then the embargo under Section 37(1)(b)(ii) of the Act will not be applicable. The learned Counsel has also relied upon the decision of this Court in Basanth Balaram & another v. State of Kerala, 2019 (1) KHC 667 , wherein it was held that when there are reasonable ground for believing that the accused is not guilty, then the embargo under Section 37 will not stand in the way of enlarging the accused on bail.
B.A.No.5209 of 2020-6-
7. The learned Public Prosecutor has vehemently opposes the application for bail stating that the offence under the NDPS Act is a very grievous one and relying on the decision of this Court in Mujeeb v. State of Kerala, 2011 (3) KHC 748 , it is submitted that when the contraband articles are distributed among several persons, the total quantity of all the accused together will have to be considered for the purpose of deciding whether it is a commercial quantity or an intermediary quantity.
8. The learned Counsel for the applicant has countered the argument of the learned defence Counsel relying on Mujeeb v. State of Kerala (supra) by stating that in that particular case there was also an offence under Section 120B read with Section 34 of the I.P.C. and the accused were all apprehended together and some of them were buyers; while the others were sellers, and therefore, they were all involved in the activity of peddling narcotics. In the instant case, the situation is not identical or similar. The learned Counsel relies upon the statements given by both the accused separately in this case. Annexure 7 is the statement given by the 1st accused, in which he has stated that he has got certain LSD stamps stored at home and four B.A.No.5209 of 2020 -7- stamps were recovered from him at the time of search from the scene of occurrence. But only one stamp was recovered from the possession of the applicant. In the statement given by the 1st accused, it is specifically stated that the applicant had come to his house and he had given one LSD stamp free of cost and that he had purchased a total of 14 stamps from another person on payment of Rs.17,000/- and he does not state regarding the involvement of the applicant also in the alleged purchase of LSD stamps. The statement of the 2nd accused, which is produced as Annexure 8 also, does not indicate that he was involved in the purchase of the entire stock of LSD stamps with the 1st accused. He does not even admit to have knowledge about the number of stamps stored by the 1st accused at his house. All that he says is that one stamp was given to him free of cost and that they were both together travelling from the house of 1st accused to another destination while they were apprehended. The applicant does not even state that he was having knowledge of four LSD stamps being possessed by the 1st accused at the time of their apprehension. Under the circumstances, the learned Counsel appearing for the applicant would contend that the applicant was having a quantity which was even B.A.No.5209 of 2020 -8- lesser than the intermediary quantity considering the fact that he was only having one LSD stamp with him. The seizure mahazar are also relied upon by the learned Counsel for the applicant. Annexure 1 is the seizure mahazar for the entire quantity of LSD stamps from the accused persons, when they were apprehended. Annexure 2 is the specific search list prepared after the apprehension of the accused and the recovery of four LSD stamps from the possession of the 1 st accused. Annexure 3 is the search list regarding the seizure of one stamp from the applicant. Annexure 4 is the seizure mahazar prepared by the detecting officers after searching the house of the 1st accused. There is no indication that the 2nd accused was also a party to the concealing of nine LSD stamps recovered from the house of the 1st accused. Annexure 5 is the search list that was prepared after seizure of nine LSD stamps from the house of the 1st accused. Considering all these factors, the learned Counsel for the applicant insists on granting of bail to the applicant since he has been in custody for a fairly long time from the date of his apprehension on 31.05.2020.
9. After having heard both sides and on perusal of documents and decisions relied upon by the learned B.A.No.5209 of 2020 -9- Counsel for the applicant and the learned Public Prosecutor, I find that there is serious doubt regarding the quantity of LSD stamps which were allegedly seized from the accused being commercial. Excluding the LSD stamps recovered from the house of the 1st accused, the total quantity of LSD stamps with the applicant and the 1st accused were only five in number and the total weight would only 66 mg. with the 1st accused and 16.5 mg. with the applicant, which together would not constitute a total of commercial quantity required for the purpose of implicating the applicant under Section 22(c) of the Act. Only if the nine LSD stamps weighing 148.5 mg. are also taken into consideration, would it come within the purview of Section 22(c) of the Act and inviting the rigor under Section 37 of the Act.
10. I am not at this point delving into the non- compliance of Section 50 of the Act. I would leave that for the trial court to decide on the basis of the evidence that is adduced. For the purpose of bail, it is not required to enter a finding into those aspects of the prosecution case. I am also not entering into a finality regarding the quantity of LSD stamps found with the applicant being intermediary or commercial. B.A.No.5209 of 2020 -10- But there is however a serious doubt and suspicion regarding the quantity involved in view of the records that is available at present for consideration. The statements of the 1st accused undoubtedly does not include the complicity of the applicant also in the acquisition of the total LSD stamps. The LSD stamps were acquired solely by him after paying money. There is also no statement to the effect that the applicant had contributed to the purchase of the LSD stamps by the 1st accused. Even the LSD stamps which was seized from the applicant was given to him free of cost by the 1st accused. Under these circumstances, I find that for the purpose of bail, the doubt regarding the quantity of the contraband articles would have a major role, and therefore, the applicant needs to be released on bail. I would like to make it clear that the trial court may not be influenced by what is stated above by this Court regarding the quantity and would endeavour to arrive at an independent conclusion regarding the quantity of the contraband involved, after appreciation of evidence.
11. In the result, the Bail Application is allowed and the applicant is directed to be released on bail on execution of a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties, each for the like B.A.No.5209 of 2020 -11- amount to the satisfaction of the jurisdictional court, on the following other conditions:
i) He shall appear before the investigating officer as and when called for and shall co-operate with the investigation;
ii) He shall not attempt to influence or intimidate the witnesses; and
iii) He shall not get involved in similar offences during the currency of the bail.
In case of breach of any of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional Court.
Sd/-
dkr ASHOK MENON
JUDGE