Kerala High Court
Muhammed Mubashir.V.P vs The State Of Kerala on 27 February, 2020
Author: V Shircy
Bench: V Shircy
B.A.9424/2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941
Bail Appl..No.9424 OF 2019
AGAINST THE ORDER/JUDGMENT IN SC 134/2019 OF SPECIAL COURT (NDPS
ACT CASES), VADAKARA
PETITIONER/ACCUSED:
MUHAMMED MUBASHIR.V.P.
AGED 29 YEARS
S/O.MUHAMMED, MUNDOLI PARAMB HOUSE,
NR.THATTARAKKANDI AMBALAM, WEAT MANKAVU,
MANKAVU.P.O., KOZHIKODE-673007.
BY ADVS.
SRI.SRINATH GIRISH
SRI.P.JERIL BABU
RESPONDENT/COMPLAINANT/STATE:
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
BY PUBLIC PROSECUTOR SMT. SREEJA V
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
27.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.9424/2019
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ORDER
Dated this the 27th day of February 2020 The accused in S.C. No. 134 of 2019 on the file of Special Court (NDPS Act Cases), Vatakara is before this Court with this application for his release on bail.
2. It is the case of the prosecution that on 26.6.2019 at about 2.40 p.m., the accused was found in possession of 130 gms of ganja and 150 mg of LSD stamps and engaged in transportation of the same in a scooter bearing No. KL-11-AF-1937 in contravention of the provisions of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'), by the Sub Inspector of Town Police Station, Kozhikode at a place near South Beach Desom of Kozhikode and he was apprehended and Crime No. 409 of 2019 of Town Police Station, Kozhikode was registered for the offences punishable under Sections 20(b)(ii)A and 22(c) of the NDPS Act. B.A.9424/2019 3 The petitioner has been in custody since then.
3. It is submitted by the learned counsel for the petitioner that the prosecution allegation that an offence under Section 22(c) of the NDPS Act has been committed by him is absolutely false as the quantity of LSD stamps involved is only small quantity. So, the definite case of the petitioner is that only 0.150 mg of LSD was found in his possession and it is small quantity, and so, he is entitled to be released on bail considering the period of detention, is the argument put forth by the learned counsel for the accused.
4. This application is strenuously opposed by the learned Public Prosecutor contending that the total quantity of ganja found in his possession was small quantity, but the LSD stamps recovered from him was commercial quantity as it was 150 mg.
5. Therefore, the quantity of the contraband involved is in dispute in this case. In the Notification Specifying Small Quantity and B.A.9424/2019 4 Commercial Quantity in NDPS Act as item No. 133 LSD (Lysergide) is scheduled and the small quantity as per this schedule is 0.002 gm. and the commercial quantity is 0.1 gm. Here, in this case, it is pertinent to note that the learned Special Judge, on examination of the records, found that there was some error with regard to the weight mentioned in the records and therefore, further investigation was ordered under Section 173 (8) of the Code of Criminal Procedure. The Investigating Officer has submitted an additional investigation report after further investigation as directed by the court and filed report on 22.01.2020. Prima facie, it is to be noted that 7 nos. of LSD stamps were detected from the possession of this petitioner. There is no quarrel with regard to the number of stamps alleged to have been detected from the petitioner. The contraband which was detected from the possession of the petitioner was sent for chemical analysis and the quantity was weighed accurately before the Laboratory and it was found that the B.A.9424/2019 5 actual weight of LSD detected was 181.10 mg. In the further investigation report submitted, it was specifically reported that some mistake/error occurred in weighing the contraband detected from the possession of the petitioner. Prima facie, it is revealed from the test report conducted in the Chemical Examiner's Laboratory, Kozhikode that the weight of the LSD was 181.10 mg, which is commercial quantity. So, the argument advanced by the learned counsel for the petitioner that only small quantity of LSD had been detected from the him, prima facie, appears to be not correct. It is pertinent to note that the case is now pending before the trial court for evidence. When it prima facie appears that commercial quantity is involved, it is not possible to enlarge the petitioner on bail accepting the argument advanced by the learned counsel at this stage.
6. Moreover, the Apex Court in Crl. Appeal No. 154-157 of 2020 (State of Kerala etc. v. Rajesh etc) held that only if the twin conditions in B.A.9424/2019 6 Section 37 of the NDPS Act are satisfied, an accused is entitled to be released on bail, when the application is opposed by the Public Prosecutor. So, if the twin conditions are not satisfied, the ban for granting bail operates. It has been observed in para No. 21 as follows:
"21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr.P.C., or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
7. Considering all these facts, I find that the accused/ petitioner is not liable to be released on bail at this stage.
B.A.9424/20197
Bail application is dismissed. It is made clear that these observations are made for the limited purpose of deciding this bail application.
Sd/-
SHIRCY V. JUDGE sb