Kerala High Court
Unknown vs By Advs.Sri.P.Vijaya Bhanu (Sr.) on 2 August, 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
THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940
Bail Appl..No. 4910 of 2018
CRIME NO. 812/2017 OF KASABA POLICE STATION , KOZHIKODE
PETITIONER(S)/ACCUSED
FASALU,
AGED 30 YEARS, S/O.ABDURAHMAN, FATHIMAS,
MULLA VEETTIL HOUSE, THIRUVANNUR (PO),
KOZHIKODE DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.VIPIN NARAYAN
SMT.MITHA SUDHINDRAN
SRI.C.JAYAKIRAN
SMT.POOJA PANKAJ
RESPONDENT(S)/COMPLAINANT :
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02-08-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RP
RAJA VIJAYARAGHAVAN V, J
=====================
B.A No.4910 of 2018
=====================
Dated this the 2nd day of August, 2018
ORDER
This application is filed under B'439 of the Cr.P.C.
2. The applicant herein is the accused in Crime No.812 of 2017 of the Kasaba Police Station, registered under B'20(b)(ii)(A), 21(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. On 23.12.2017, based on secret information, the applicant was intercepted and a search was conducted after complying with all statutory formalities. From a bag found in the possession of the applicant, 29.5 gms. of Hashish, 15.5 gms. of Cocaine and 54 LSD stamps weighing 1 gm. were detected. The contraband articles were sampled and sealed and later the Crime was registered after arresting the applicant.
4. The learned counsel appearing for the applicant submitted that the applicant has been undergoing incarceration B.A No.4910 of 2018 2 from 23.12.2017 and the final report has been laid. The earlier application filed by the applicant was dismissed by this Court by Annexure-A order. Bail was denied by this Court holding that the applicant was possessing LSD which falls within the description of commercial quantity and in view of Section 37 of the Act, the applicant is not entitled to be released on bail unless the twin conditions as mandated therein are satisfied. It is submitted by the learned counsel that the there are no materials to conclude that 1 gm. of LSD was seized from his possession. It is submitted that 54 stamps of LSD would never weigh 1 gm. and the edifice of the prosecution case would be shattered. The contraband was weighed with an uncalibrated equipment sourced from a private jeweller and Annexure-B certificate issued from the Chemical Examiner's Lab would not support the case of the prosecution, submits the learned counsel.
5. The learned Public Prosecutor submitted that a deadly cocktail of drugs was seized from the possession of the applicant and the seizure was effected after complying with all statutory formalities. It is submitted that trial has already commenced and B.A No.4910 of 2018 3 in view of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, the applicant is not entitled to be enlarged on bail at this stage.
6. I have considered the submissions advanced and have gone through the materials on record.
7. As rightly submitted by the learned Public Prosecutor, the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. The limitations on granting of bail specified in clause (b) of sub Section (1) of Section 37 of the Act are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail. It can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) is b