Kerala High Court
Jagath Ram Joy vs State Of Kerala, Represented By Its ... on 26 April, 2022
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
BAIL APPL. NO. 2530 OF 2022
[CRIME NO.17/2022 OF EXCISE RANGE OFFICE, ERNAKULAM]
PETITIONER/ACCUSED:
JAGATH RAM JOY,
S/O.JOY RAMACHANDRAN, AGED 21 YEARS,
KOTTAVACHAVILA HOUSE, AYIROOR.P.O., VARKALA,
THIRUVANANTHAPURAM.
BY ADV.SRI.SUMAN CHAKRAVARTHY
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
BY ADV.SMT. SEENA C-PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
26.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BAIL APPL. NO. 2530 OF 2022
-2-
ORDER
This is an application filed u/s 439 of Code of Criminal Procedure seeking regular bail.
2. The petitioner is the accused in Crime No.17/2022 of the Excise Range Office, Ernakulam. The offence alleged is under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short)
3. The prosecution case in short is that on 01.03.2022 at about 11 P.M., the petitioner was found in possession of 0.3868 gms of LSD stamp for sale in contravention of the NDPS Act and Rules and thereby committed the aforesaid offence.
4. Heard Sri.Suman Chakravarthy, the learned counsel for the petitioner and Smt.Seena C., the learned Public Prosecutor and perused the case diary.
5. The learned counsel for the petitioner, to get over the rigour of Section 37 of the NDPS Act, has raised before BAIL APPL. NO. 2530 OF 2022 -3- me the following two points:
(i) The weight of the LSD shown in the Mahazar as 0.3868 gms is inclusive of the weight of the stamps. According to the learned counsel, if the LSD alone is taken, it would be a small quantity. In support of his submissions, the learned counsel relied on the decision of the Bombay High Court in Hitesh Hemant Malhotra v. State of Maharashtra [(2021) 3 MhLJ(Crl) 78] dated 07.12.2020 as well as the three decisions of this Court in Bail Application Nos.1718/2021 dated 08.03.2021, 2652/2021 dated 07.05.2021 and 3577/2021 dated 04.05.2021.
(ii) There is contravention of Section 50 of the NDPS Act.
6. Per contra, the learned Public Prosecutor submitted that the contraband was seized from the possession of the petitioner and that the materials on BAIL APPL. NO. 2530 OF 2022 -4- record would clearly show that it is a commercial quantity and the bar under Section 37 of the NDPS Act would get attracted.
7. I have perused the records. The Mahazar would show that, on getting prior information that the petitioner was carrying LSD stamps, the Excise Inspector went to the scene of occurrence and on seeing the Excise Party, the petitioner perplexed and on questioning, he admitted that he was having possession of LSD stamps. Thereafter, the petitioner voluntarily took the purse from his pocket, opened it and took 20 numbers of LSD stamps and handed them over to the Excise Inspector who, after being convinced that it was LSD stamps, seized the same. Thereafter, the Excise Inspector asked the petitioner whether he required the presence of the Magistrate or Gazetted Officer to conduct his body search and the petitioner answered in the negative. Still, the Excise Inspector secured the presence of a Gazetted Officer, and in BAIL APPL. NO. 2530 OF 2022 -5- his presence, the body search of the petitioner was conducted in compliance of Section 50 of the NDPS Act and on such search, no contraband substance was found in his body. Thus, admittedly, before seizure of the LSD stamps from the possession of the petitioner, Section 50 of the NDPS Act was not invoked. When the petitioner disclosed to the Excise Inspector that he had kept the LSD stamps in his purse, the Excise Inspector ought to have given an option to the petitioner to seek the presence of either the Gazetted Officer or the Magistrate in compliance of Section 50 of the NDPS Act. Here, the option was given to the petitioner to secure the presence of the Gazetted Officer or the Magistrate only after seizure was made. Thus, I find some force in the argument of the learned counsel for the petitioner that there is violation of Section 50 of the NDPS Act.
8. As to the question whether the quantity involved is a commercial quantity or not, the Mahazar would show BAIL APPL. NO. 2530 OF 2022 -6- that the weight shown in it is inclusive of the weight of the stamps. According to the learned counsel for the petitioner, if the LSD alone is taken, it will be below the small quantity. In the decision of the Bombay High Court in Hitesh Hemant Malhotra (supra), relied on by the petitioner, it was observed as follows:
"8. I have perused the First Information Report, Recovery Panchanamas and Chemical Analyser's report. At the outset, it may be stated that the most common form of LSD is drop of LSD solution dried onto piece of paper or gelatin sheet, pieces of blotting papers which releases the drop when swallowed/consumed. In this case, drug was found in the form of drops dried onto 23 pieces of papers. Thus, process of drying LSD solution on a piece of paper, merely facilitates consumption of drug. This process neither changes the substance of the drug or its chemical composition. It is argued by the State, that since dried LSD drops of LSD solution, cannot be segregated or separated from the papers, it amounts to a 'mixutre' and therefore the weight of the paper is to be counted with 'LSD dots' for determining the quantity of drug which was more than 0.1 gram, The learned APP relies on Entry-239 of the Table and Footnote- (4) appended thereto of the NDPS Act. Entry No.239 and Footnote-(4) reads as under:
239. Any mixture or preparation that of with or without a neutral material, of any of the above drugs.
Lesser of the Small quantity between the quantities given against the respective BAIL APPL. NO. 2530 OF 2022 -7- narcotic drugs or psychotropic substances mentioned above forming part of the mixture. Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.
"4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."
9. In my view, though after swallowing piece of paper, which causes release of drug but since that paper only carries drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither "preparation", within the meaning of Section 2(xx), nor a "mixture" within the meaning of the NDPS Act. So far as the judgment of the Hon'ble Apex Court in the case of Hira Singh (supra) is concerned, issue therein was, whether mixture of narcotic drug or psychotropic substances with one or more neutral substances, quantity of neutral substances can be excluded while determining the small or commercial quantity of narcotic drug and psychotropic substances. However herein, the papers containing dried LSD drops of LSD solution, not being a mixture, and the paper being not a neutral substance, judgment of the Apex Court, has no application to the facts of this case.
9. The learned Judge, as it appears from the impugned order, has accounted weight of papers "while calculating and determining quantity of the BAIL APPL. NO. 2530 OF 2022 -8- LSD as a "commercial quantity". In addition, while holding quantity of charas recovered from the applicant was 'commercial quantity', is equally incorrect because charas allegedly recovered from the applicant was 970 gms i.e.less than 1 kg.
10. Thus in consideration of the facts of the case, the findings of the learned Judge that weight of the paper containing dried LSD drops of LSD solution is required to be accounted while determining its quantity; whether small or otherwise is incorrect. In this case, the Chemical Analyser's report, shows quantity of LSD drops solution was 0.4128 milligrams, which was below 0.1 gm of commercial quantity. Therefore, rigors of Section 37 of the NDPS Act, are not applicable to the facts of this case.
11. Herein, the applicant has no criminal antecedents. He is in custody since June, 2019. Therefore, in the facts of the case, the applicant is admitted to bail on following terms and conditions.:"
9. The Bombay High Court has also considered the decision of the Supreme Court in Hira Singh & Another v.
Union of India [2020 (2) KHC 551]. After going through the judgment of Bombay High Court, I am of the view that an arguable point has been raised by the petitioner. The dictum laid down in Hitesh Hemant Malhotra (supra) has been followed by another single Bench of this Court in the three decisions mentioned above. BAIL APPL. NO. 2530 OF 2022 -9- For all these reasons, I hold that the rigour of Section 37 of the NDPS Act would not get attracted as against the petitioner. The petitioner is a B.Tech Student. He has no criminal antecedents. The learned counsel for the petitioner submitted that his examination is due on May, 2022.
Considering all these aspects, I am of the view that this is a fit case where the petitioner can be released on bail.
10. It is made clear that the observations made above as to Section 50 of the NDPS Act and also as to the quantity of the contraband seized are only for the limited purpose of deciding this bail application.
In the result, the application is allowed on the following conditions:-
(i) The petitioner shall be released on bail on executing a bond for `1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.
(ii) The petitioner shall fully co-operate with the BAIL APPL. NO. 2530 OF 2022 -10- investigation.
(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner shall also appear before the investigating officer as and when required by him.
(iv) The petitioner shall not commit any offence of like nature while on bail.
(v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.
(vi) The petitioner shall not leave State of Kerala without the permission of the trial Court.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE akv