Kerala High Court
Abhijith vs State Of Kerala on 7 July, 2020
Equivalent citations: AIRONLINE 2020 KER 900
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942
Bail Appl..No.3588 OF 2020
AGAINST THE ORDER IN CRMC 302/2020 DATED 25-02-2020 OF DISTRICT
COURT & SESSIONS COURT, PALAKKAD
CRIME NO.1/2020 OF Palakkad Excise Circle Office , Palakkad
PETITIONER/S:
ABHIJITH
AGED 21 YEARS
S/O. PADMANABHAN, PUTHENPURAYIL HOUSE, CHERUTHURUTHI,
VADAKKEKKAD, THRISSUR 679 562.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRI.V.C.SARATH
SMT.POOJA PANKAJ
SRUTHY N. BHAT
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031.
BY SR.PP. B.JAYASURYA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No. 3588 of 2020 2
P.V.KUNHIKRISHNAN, J
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B.A.No. 3588 of 2020
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Dated this the 7th day of July, 2020
ORDER
The petitioner is the sole accused in Crime No. 1 of 2020 of Palakkad Excise Circle. The above case is registered against the petitioner alleging offence punishable under Section 22(c) of the Narcotic Drugs Psychotropic Substances Act (for brevity NDPS Act). The petitioner was arrested in connection with this case on 13.1.2020.
2. The prosecution case is that on 13.1.2020 at about 3.45 p.m, the Excise party found the applicant in possession of 12.400 gms of MDMA in Palakkad Junction Railway Station.
3. This Court as per Annexure-D order dated 15.5.2020 dismissed the bail application of the petitioner earlier mainly considering the serious nature of the offence alleged against the petitioner. This is the second bail application filed by the petitioner on 2.6.2020. When this case came up for consideration, I direct the Public Prosecutor to get instructions. The Public Prosecutor was B.A.No. 3588 of 2020 3 specifically directed to get instructions on ground (2) mentioned in the memorandum of bail application. Ground (2) of the memorandum of bail application is extracted hereunder:
"2. It is humbly submitted that the applicant is student who completed his Bachelors in Malayalam. He studied physiotherapy and then went to Bangalore for a job as mentioned by his friend Baiju. The applicant went to Banglore on 30.12.2019. He returned to Kerala in the night of 12.01.2020 as the job did not materialize. The elder cousin brother of the applicant Giridas @Giri had contacted the applicant had told him to carry a parcel given by a person from Bagalore after giving some cash. This Giridas had transferred Rs.22,000/- to the applicant's mother's account on 12.01.2020. The applicnt gave the cash to this person and collected the parcel and took the parcel over with him and boarded the train to Shornur. The applicant never knew the contents of the parcel. This the applicant's first visit to Bangalore and he was in Bangalore only for 12 days. The applicant is totally innocent. True copy of the bank statement of the mother of the applicant for the period of 1.1.2020 to 11.3.2020 is produced herewith and marked as Annexure-E."
4. After getting instructions, the Public Prosecutor submitted that the above Giridas, son of Gangadharan was questioned and he denied any connection with the petitioner. Therefore, he was not implicated in the case. I do not want to make any comments about this in this bail application.
5. The counsel for the petitioner submitted that even at the stage when the petitioner was arrested, he said that the contraband B.A.No. 3588 of 2020 4 was received by him from a person for handing over the same to one Giridas V.G, S/o.Gangadharan. He was only a carrier of the contraband article without the knowledge of the contents of the same. He submitted that he was directed to give the contraband article to Giridas, S/o.Gangadharan. This is mentioned in the seizure mahazar itself. He also produced a bank statement showing that an amount of Rs.22,000/- is credited to the account of his mother by the said Giridas.
6. Again, I do not want to make any observation about the merits of the case. I am only considering a bail application. These are matters to be proved by the petitioner before the trial court. But considering the facts and circumstances of the case and also considering the fact that the petitioner is in custody from 13.1.2020 I obtained a report from the Additional Sessions Judge-II, Palakkad regarding the time required to dispose the case itself because it was submitted by the Public Prosecutor that final report is already filed. The Additional Sessions Judge-II as per letter dated 2.7.2020 gave a report, which is extracted hereunder:
"S.C.No.271/2020 is a case based on the final report filed by the Assistant Excise Commissioner, Excise B.A.No. 3588 of 2020 5 Enforcement and Anti Narcotic Special Squad, Palakkad on an allegation that on 13.1.2020 at about 03.45 p.m, the accused viz., Abijith P.P. S/o.Padmanabhan was arrested along with 12.400 grams of MDMA. Hence liable for the offence punishable under section 22(C) NDPS Act. The accused is in judicial custody. He is represented by his counsel Advocate Sri.K.Haridasan.
I may further submit that the Chemical Examination Report with respect to the sampled item is yet to be received from the Regional Chemical Examiner's Lab, Ernakulam. On receiving the chemical examiner's report, can be proceed to hearing on charge under section 227 of Cr.PC. If witnesses are produced by the prosecution in time, I may submit that the trial can be completed and case can be disposed within three months from the date of receiving the chemical examiner's report from Regional Chemical Examiner's Lab, Ernakulam."
7. From the above facts, it is clear that chemical examiners report is not obtained by the prosecution and the final report is filed without getting the chemical examiners report. This Court in order dated 12.6.2018 in B.A.No.3677 of 2018 considered a case with similar situation. This Court passed the following order:
"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 B.A.No. 3588 of 2020 6 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 analyze articles seized under the NDPS Act. They are able to analyse only 3000 cases per year and the accumulation as on 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 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 B.A.No. 3588 of 2020 7 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."
8. The contraband involved in this case is MDMA, which is a psychotropic substance. I think for a proper decision of the case, the chemical examiners report is necessary. The Public Prosecutor was not able to submit when the chemical examiner's report will be ready because of the huge pendency of samples for analysis before the chemical examiners laboratory. In such circumstances, I am not in a position to keep this petitioner behind bar indefinitely. Moreover, if ultimately the chemical examiner report that the sample is not a psychotropic substance, it will be a sad story. Admittedly, the petitioner is not involved in any other case. In the facts and circumstances of the case, I think this bail application can be allowed.
(i) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/-(Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the trial court.
(ii) The petitioner shall not commit any similar offence.
(iii) The petitioner shall not intimidate or attempt to B.A.No. 3588 of 2020 8 influence the witness or shall not tamper with evidence.
(iv) The petitioner shall appear before the trial court as and when required by the trial judge.
(v) The petitioner shall surrender his passport if any before the trial court. If there is no passport, he shall file an affidavit before the trial court to that effect within one week from the date of his release.
(vi) If any of the above conditions are violated by the petitioner, trial court can cancel the bail without any further orders from this Court.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE cms