Ajesh v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 702 OF 2024 ``` ``` CRIME NO.41/2023 OF AMARAVILA EXCISE RANGE OFFICE, THIRUVANANTHAPURAM ``` ## `PETITIONER/2ND ACCUSED:` ``` AJESH, AGED 34 YEARS S/O. NAGAPPAN, KUZHIVILA VEEDU, CHEMMAMKALA DESOM, KUZHITHURAI VILLAGE, VILAVANCODE, KANYAKUMARI, TAMIL NADU, PIN – 629163 ``` ``` BY ADVS.GIRISH KUMAR M S AKASH S. V.S.VARALEKSHMI RAJALAKSHMI.R. ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM. (EXCISE INSPECTOR, AMARAVILA EXCISE RANGE OFFICE), PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.702/2024 -:2:- Dated this the 26[th] day of February,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973(‘Code’, for short), by the second accused in Crime No.41/2023 of Amaravila Excise Range, Thiruvananthapuram, against the accused (two in number) for allegedly committing the offences punishable under Sections 22(C), 20(b)(ii) (A), 25 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested on 15.07.2023. 2. The gravamen of the prosecution case is that: on 15.07.2023, at around 10.15 p.m., the first accused was found in possession of 0.104 grams of LSD stamp and 8.367 grams of Hashish Oil and the second accused was found in possession of 25 grams of ganja, which were meant for sale, and both of them were travelling in the motor car bearing No.TN-69-BE-7889 B.A.No.702/2024 -:3:- through Udiyankulangara– Plamoottukkada road in Chenkal Village, in contravention of the provisions of the NDPS Act. During the search of the vehicle, an additional 75 grams of ganja was also seized. Thus, the accused have committed the above offences. 3. Heard; Sri. Girish Kumar M S, the learned Counsel appearing for the petitioner and Smt. Seetha S. the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The inventory certified by the learned Magistrate is in violation of Section 52A of the NDPS Act because the inventory ought to have been certified by the Executive Magistrate and not the Judicial Magistrate. He relied on the decision of this Court in **Sathyan & Ors. v. State of Kerala** B.A.No.702/2024 -:4:- [2023:KER:19141], wherein this Court while dealing with an analogous provision under the Abkari Act has held that, it is only the Executive Magistrate who has the to the correctness of an jurisdiction certify inventory under Section 53A of the said Act. The learned Counsel also submitted that going by the prosecution allegation, the contraband articles of LSD stamp and Hashish Oil were indisputably seized from the body of the first accused, and only a small quantity of 25 grams of ganja was allegedly seized from the possession of the petitioner. It is only because Section 29 has been incorporated by the Investigating Officer, that the petitioner has been denied bail. The petitioner has no criminal antecedents. The investigation in the case is complete and the final report has been laid. The petitioner is uncertain of the time period that would be required to complete the trial. Therefore, the petitioner would have unnecessarily languish in the B.A.No.702/2024 -:5:- jail. The petitioner is the sole breadwinner of his family. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. She contended that the petitioner and the first accused were found travelling in a car and three contraband articles were seized from the possession of both the accused. Therefore, Section 29 of the NDPS Act has been incorporated, which substantiates that the accused had a common intention to deal with the contraband articles. She refuted the contention of the learned Counsel for the petitioner that only the Executive Magistrate has jurisdiction to certify the correctness of the inventory. She relied on sub-section (4) of Section 3 of the Code and contended that the Judicial Magistrate is empowered to certify the correctness of the inventory, since the matter falls within the purview of enquiry and trial. She further submitted that as the contraband is of a commercial B.A.No.702/2024 -:6:- quantity, the rigour under Section 37 of the NDPS Act applies to the facts of the case. Hence, the application may be dismissed. 6. A careful reading of the prosecution allegation would establish that the Detecting Officer had seized 0.104 grams of LSD stamps and 8.367 grams of Hashish Oil from the conscious possession of the first accused and 25 grams of ganja from the conscious possession of the second accused/petitioner. In addition to the above contraband, the Detecting Officer also seized 75 grams of ganja from the car in which the accused were allegedly travelling. Therefore, it is only the LSD stamp that is of a commercial quantity. 7. Serial No.133 of the specification of small and commercial quantity of Narcotic Drugs and Psychotropic Substances dated 19.10.2021 stipulates that 0.1 grams of LSD/ LSD-25 is the commercial quantity. B.A.No.702/2024 -:7:- 8. Thus, going by the prosecution allegation, the LSD that was allegedly seized from the first accused is just above the commercial quantity mark. 9. The contention of the learned counsel for the petitioner that the Judicial Magistrate does not have the jurisdiction to certify that the correctness of the inventory, in view of the law laid down in **Sathyan** ‘s case (supra), is untenable. 10. Section 52A of the NDPS Act deals with the disposal of seized Narcotic Drugs and Psychotropic Substances. It is apposite to extract Section 52A of the NDPS Act, which reads as follows: ## “ **52-ADisposal of seized narcotic drugs and** **psychotropic substances.-** [(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or B.A.No.702/2024 -:8:- conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such[narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances] or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal B.A.No.702/2024 -:9:- Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.] 11. Sub-Section(2) of Section 52A of the NDPS Act confers powers on any Magistrate to certify the correctness of the inventory prepared by the Investigating Officer. 12. Similarly, Section 76 of the NDPS Act confers powers on the Central Government to promulgate rules for carrying out the purposes of the NDPS Act. Clauses (de) & (df) of sub-Section (2) of Section 76 of the NDPS Act deals with the disposal of all articles or things confiscated under the NDPS Act and drawing of sample, and testing and analysis of such samples. 13. Pursuant to the above power, the Central Government has framed the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling B.A.No.702/2024 -:10:- and Disposal) Rules, 2022. Clause (b) of Sub-Rule (1) of Rule 2 of the said Rules defines the Magistrate as ‘the Judicial Magistrate’. As the Magistrate has been defined as ‘Judicial Magistrate’ under the Rules, the contention put forth by the learned counsel for the petitioner based on the decision of this Court in **Sathyan** ‘s case (supra), is untenable. 14. It is to be remembered in the Abkari Act, there is no analogous rules framed till date. Hence, the petitioner cannot draw analogy from the above decision and contend that it is the Executive Magistrate and not the Judicial Magistrate who has the power to certify the correctness of the inventory. In view of the aforesaid finding, I reject the above contentions of the learned counsel for the petitioner. 15. Now, coming back to the right of the petitioner to be released on bail. 16. As per the prosecution allegation, the B.A.No.702/2024 -:11:- commercial quantity of LSD was obviously seized from the conscious possession of the first accused. The allegation against the second accused was that he was found in possession of 25 grams of ganja although the accused Nos.1 & 2 were travelling in the same car. But, as there is an explicit allegation that the commercial quantity of contraband was seized from the conscious possession of the first accused, I am of prima-facie view that the second accused/petitioner cannot be alleged to have carried the said commercial quantity of contraband. The contraband articles allegedly seized from the possession of the petitioner and the car are of a small quantity. Moreover, the second accused has no criminal antecedents. Therefore, the rigour under the second limb of Section 37 of the NDPS Act also stands diluted. 17. On an overall consideration of the facts, the rival submissions made across the Bar, the materials B.A.No.702/2024 -:12:- placed on record and the findings rendered above, I hold that the rigour under Section 37 of the NDPS Act, so far as the petitioner/second accused is concerned, stands diluted in the light of the law laid down by the Hon'ble Supreme Court in **Dheeraj Kumar Shukla v. The State of Uttar Pradesh** [2023 KHC 6545],. 18. In addition to the above finding, undisputedly the investigation in the case is complete, the recovery has been effected and the final report has been laid. Furthermore, the petitioner has been in judicial custody since 15.07.2023 and the time period within which the trial would be completed is also uncertain. Thus, I hold that there are reasonable grounds to find that the petitioner has not committed the offences alleged against him and he is not likely to commit an offence also. In the result, the application is allowed, by directing the petitioner to be released on bail on him B.A.No.702/2024 -:13:- 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 court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer as and when required; - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii)The petitioner shall not commit any offence while she is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; B.A.No.702/2024 ## -:14:- - (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State(NCT of Delhi) and Anr.** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/26.02.24 //True copy// P.A. To Judge