Kerala High Court
Ajayan vs State on 7 March, 2011
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 1440 of 2011()
1. AJAYAN, AGED 30 YEARS
... Petitioner
Vs
1. STATE ,REPRESENTED BY THE
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :07/03/2011
O R D E R
V.RAMKUMAR, J.
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Bail Application No.1440 of 2011
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Dated this the 7th day of March, 2011
ORDER
Petitioner, who is the first accused in Crime No.389 of 2010 of Punnapra Police Station for an offence punishable under Section 22(c) of the N.D.P.S. Act for allegedly having been found in possession of 1070 ampules of lupigesic each containing 2ml on 21/06/2010, seeks his enlargement on bail.
2. The learned Public Prosecutor opposed the application.
3. This matter had a chequeheard carrier. On 22/6/2010 the Magistrate had initially granted bail to the petitioner on the mistaken ground that the quantity involved was only a small quantity. That was challenged by the prosecution by moving the Sessions Court, Ernakulam. On 13/07/2010 the Sessions Court cancelled the bail. Subsequently the petitioner moved the Sessions Court for bail by filing Crl.M.P.No.2332 of 2010. On 21/08/2010 the Sessions Court granted bail to the petitioner mainly for the reason that the investigation of the case was over and the charge sheet was already filed before the concerned court on 19/8/2010. The order granting bail was challenged before this Court in Crl.M.C.No.3681 of 2010. As per order dated 08/11/2010 this Court allowed the Crl.M.C. and set aside the order dated 21/08/2010 passed by the Sessions Court granting bail to the Bail Appln.No.1440/2011 : 2 : petitioner. This Court observed that having regard to the quantity involved, it was "commercial quantity" which attracted Section 37(1)(b)(ii) of the N.D.P.S.Act and that bail could be granted only if both the conditions enumerated thereunder were present. Thereafter as per the order dated 03/02/2011 the learned Sessions Judge dismissed Crl.M.P.No.2332 of 2010 holding, inter alia, that both the grounds enumerated under Section 37(1)(b)(ii) of the N.D.P.S. Act are absent. Hence this application for regular bail.
4. The learned counsel appearing for the petitioner submitted that as a matter of fact what was seized from the possession of the petitioner was only 5 ampules and 1065 ampules were actually seized from the house of A2 a woman and that except for the fact the petitioner was seen frequenting the said house it could not be assumed that he was in possession of the psycotropic substance seized from the said house. Moreover A2 has already been released on bail.
5. I cannot agree with the above submissions. This Court had during the earlier occasion held in Crl.M.C.No.3681 of 2010 that Section 37(1)(b)(ii) of N.D.P.S. Act is attracted in this case. This means that it is no longer open to the petitioner to contend that the quantity involved would only be "small quantity" or that "commercial quantity" is not involved. If so, the only ground on Bail Appln.No.1440/2011 : 3 : which bail could be granted to the petitioner is one under Section 37(1)(b)(ii) of the N.D.P.S.Act and that is only if the court prima facie finds that the accused is not guilty of the offences and that the accused will not commit any offence while on bail. From the facts and circumstances of the case it cannot be said that the petitioner is prima facie not guilty of the offence or that he will not commit any offence while on bail since he is already an accused in 7 other N.D.P.S. Act cases. Hence on the strength of Section 37(1)
(b)(ii) of N.D.P.S. Act itself the petitioner is entitled to bail leave alone the fact that he is involved in one case which is punishable under Section 302 I.P.C. and one case which is punishable under Wild Life Protection Act and 10 other cases involving other I.P.C. offences. I, therefore, do not find any good ground to release the petitioner on bail.
This petition is accordingly dismissed.
Dated this the 7th day of March, 2011.
V.RAMKUMAR, JUDGE.
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