Kerala High Court
Shine Zachariyas vs State Of Kerala on 12 June, 2018
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940
Bail Appl..No. 3677 of 2018
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CRIME NO.2/2018 OF MULAVUKAD POLICE STATION, ERNAKULAM
PETITIONER(S)/ACCUSED:
SHINE ZACHARIYAS,
AGED 34 YEARS, S/O.V.J.ZACHARIYAS, VADAKKEN HOUSE,
NEAR S.H.CHURCH, THOYAKKAVU P.O., PAVARATTY,
THRISSUR DISTRICT.
BY ADVS.SRI.ABRAHAM P.GEORGE
SRI.M.RAJENDRAN NAIR
SRI.M.P.JAYAN
SRI.JOHNY THOMAS
RESPONDENT(S)/COMPLAINANT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
THROUGH THE SUB INSPECTOR OF POLICE,
MULAVUKAD POLICE STATION, ERNAKULAM DISTRICT.
BY PUBLIC PROSECUTOR MR. C.N.PRABHAKARAN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12-06-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RAJA VIJAYARAGHAVAN V, J
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B.A No.3677 of 2018
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Dated this the 12th day of June, 2018
ORDER
1. This application is filed under Section 439 of the Code of Criminal Procedure.
2. The applicant herein is the sole accused in Crime No.2 of 2018 of the Mulavukad Police Station registered under Sections 20 (b) (ii)(C), 28, 29 and Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. According to the prosecution, based on source information, the applicant herein was intercepted on 1.1.2018 and on search, he was found having in his possession 0.480 gms of LSD stamps numbering about 15. It is the case of the prosecution that the LSD stamps were meant to be sold to party-goers, who were expected to attend the Rave Party to be held at Bolgatty Palace, Ernakulam.
4. The learned counsel appearing for the applicant submitted that the applicant is innocent and the allegation that he had possessed LSD is without basis. It is further submitted that though he was arrested on 1.1.2018, the report of chemical B.A No.3677 of 2018 2 analysis has not been obtained by the prosecution to confirm that the contraband seized from his possession is LSD or for that matter any other contraband. The learned counsel would further submit that the final report was laid before the jurisdictional court on 27.3.2018 without producing the report of chemical analysis. The applicant cannot be subjected to indefinite incarceration for the lapses of the prosecution, according to the learned counsel. This would amount to miscarriage of justice is the submission. Alternatively, the learned counsel submits that the applicant is suffering from Neurobrucellosis and this was diagnosed at the Aster Medicity Hospital, Ernakulam. He was admitted in the hospital for treatment on 7.8.2017 and was discharged only on 21.8.2017. According to the learned counsel, Annexure-A1 discharge summary would reveal that the applicant was in a very bad condition when he was admitted. It is submitted that Brucellosis is a multisystem disease with various clinical symptoms and Neurobrucellosis is a rare but serious manifestation of brucellosis. According to the learned counsel, the condition of the applicant has aggravated and it is prayed that at least on medical grounds, he be granted bail. The earlier application filed by the applicant was dismissed by this Court by Annexure-A3 order dated 9.2.2018 and it is prayed B.A No.3677 of 2018 3 that he be released on bail in view of the change of circumstances is the submission.
5. The learned Public Prosecutor has vehemently opposed the prayer. It is submitted that commercial quantity of LSD was seized from the possession of the applicant. According to the learned Public Prosecutor, unless the parameters laid down in Section 37 of the NDPS Act, 1985 is satisfied, this Court will not be justified in granting bail to the applicant.
6. I have considered the submissions advanced and have gone through the materials made available.
7. The applicant herein was arrested on 1.1.2018 and after completion of investigation, final report has been laid as early as on 27.3.2018. There cannot be any doubt that the offence allegedly committed by the applicant is of the most grave nature. One of the contention raised by the learned counsel is that the contraband seized is not LSD. The Public Prosecutor was directed to produce the report of the chemical analysis when the matter had come up on 5.6.2018 and an order was also passed. Today, when the matter is taken up, the learned Public Prosecutor submits that he has not been able to B.A No.3677 of 2018 4 procure the Chemical Analysis Report as the item has not been tested till date.
8. The data as regards pending cases were obtained from the Forensic Science Laboratory and the Chemical Examiner's Laboratory and a statement was filed before this Court in B.A.No.1681 of 2018. It appears that about 277 drug samples were forwarded to the State and Regional Forensic Laboratories during the period from 1.1.2014 to 31.3.2018. Insofar as the Chief Chemical Examiner's Laboratory is concerned, more than 7000 samples are sent every year for analysis under the NDPS Act. The Laboratories are finding it difficult to conduct the sampling due to lack of manpower and non-availability of sophisticated instruments like Gas Chromatography-Mass Spectrometry (LCMS) which are indispensable for analysing dangerous drugs like Lysergic acid Diethylamide (LSD), Methylene Dioxy Methamphetamine (MDMA), Magic Mushrooms etc. Severe shortage of analysts are also being faced. In Kochi city, a total number of 1565 crimes have been registered during the year 2017. There are only 10 analysts in the narcotic division whose job is to analyse articles seized under the NDPS Act. They are able to analyse only 3000 cases per year and the accumulation as on B.A No.3677 of 2018 5 date is 2000 cases each year. Several new generation drugs like LSD, Cath leaves, Ketamine, Psilosybin, Cocaine and their derivatives are also seized regularly. Unless expeditious steps are taken to bolster the analytical labs and equip them with state of the art equipment, the stringent provisions for the control and regulation of provisions relating to Narcotic Drugs would not yield any result. It is high time that necessary steps are taken to correct this grave situation.
9. There is another aspect of the matter. In Crime No.320 of 2018 of Ernakulam Central Police Station, 1.060 gms of LSD was seized from the accused. However, when the report of the Chemical Analysis was obtained, it revealed that LSD was not detected. He had to undergo incarceration of more than 100 days. Similarly, in Crime No.751 of 2017 of the Kasba Police Station, the accused was arrested on 17.11.2017 on the allegation that he was found having in his possession 163 gms of LSD. However, the report of Chemical Analysis which was obtained after about five months showed that the contraband seized was not LSD. In the same manner, in Crime No.2369 of 2017 of Ernakulam Town North Police Station, the accused was arrested for having possessed Psilocybine (Magic mushroom). However, when the report of chemical analysis B.A No.3677 of 2018 6 was received, it tested negative for Psilocybine. These are some of the instances that this Court has come across in the near past.
10.The lack of infrastructure cannot be a reason to deny bail to the applicant. It is for the State to take all earnest efforts to address this issue and set up analysis lab in all the Districts with state of the art equipment to streamline the whole process. As stated above, the applicant herein who is admittedly a sick man has been in custody from 1.1.2018. The State has not been able to even prima facie establish that he was possessing LSD. His further detention would result in failure of justice. I find no reason to deny bail to the applicant.
11.In the result, this application will stand allowed. The applicant shall be released on bail on his executing a bond for Rs.50,000/-(Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the folowing conditions:
1). The applicant shall appear before the investigating officer on all Saturdays between 10 a.m. and 1 p.m for a period of two months or till the final report is filed B.A No.3677 of 2018 7 whichever is earlier.
2). The applicant shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence.
3). The applicant shall not commit any offence while he is on bail.
4). The applicant shall not leave India without the permission of the court having jurisdiction and if having passport, shall deposit the same before the court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction.
In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.
Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE krj //true copy// P.A to Judge