Iqlas and Shahad Saman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943 BAIL APPL. NO. 5562 OF 2021** **CRIME NO. 169/2021 OF NALLALAM POLICE STATION, KOZHIKODE** **PETITIONERS:** **1 IQLAS AGED 24 YEARS S/O.RASHEED, PUTHIYAPPIL PARAMB HOUSE, KANNANCHERY, KALLAI, KOZHIKODE DISTRICT, PIN - 673 003. 2 SHAHAD SAMAN AGED 23 YEARS S/O.SAKEER HUSSAIN, PARAKKOT HOUSE, PULLOONNIPADAM, AREEKKODE, NALLALAM P.O., KOZHIKODE DISTRICT, PIN - 673 027.** **BY ADVS. P.A.NOOR MUHAMED S.GIFFARA BILAL NIAMATHULLA** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** ## **BY SMT SREEJA V., SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.08.2021, THE COURT ON 13.08.2021 PASSED THE FOLLOWING:** Bail Appl.No.5562 OF 2021 2 ## **ORDER** This is an application for regular bail moved by the accused in crime 169/2021 of Nallalam police station, Kozhikode district, which was registered on 05.05.2021 by the Sub Inspector of that police station, after seizing 12.050 grams of MDMA from the accused persons. The crime was registered under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the NDPS Act. The prosecution records indicate that, that day while the Sub Inspector and party were engaged in law and order patrol duty, they got reliable information about two persons dealing in Narcotic drugs in a plantain garden owned by one Ashraf near Modern Bazar, Kolathara. When they reached there, two persons, who are the petitioners were found in suspicious circumstances; both were intercepted and later in the presence of a gazetted officer, their body was searched and on search 8.250 grams of MDMA was found in the possession of the 1[st] petitioner, who is the 1[st] accused Bail Appl.No.5562 OF 2021 3 and 3.800 grams of MDMA was found in the possession of the 2[nd] petitioner, the 2[nd] accused. Accordingly, following the procedural formalities, the contraband was seized in the presence of independent witnesses and also the gazetted officer; the petitioners were arrested and then remanded to judicial custody; since then they are continuing in judicial custody. 2. I heard the learned counsel on both sides. 3. According to the learned counsel for the petitioners, the prosecution has erred in alleging offence under Section 22(c) of the NDPS Act against the petitioners. The contraband should have been reckoned individually; that is, 8.250 grams of MDMA by the 1[st] petitioner and 3.800 grams of the substanc by the 2[nd] petitioner. If that was so, Section 22(c) would not have been attracted; even admitting that so much quantity of MDMA was seized from their possession, offence only under Section 22(b) that is, for having possessed intermediary quantity of MDMA would have been attracted. The learned counsel also placed reliance on the decisions reported in **Mushaque Ahammed @ Muthu and Another v. Sub Inspector of Police, Malappuram** Bail Appl.No.5562 OF 2021 4 **and Another [2020 KHC 310], Amarsingh Ramjibhai Barot v. State of Gujarat [(2005) 7 SCC 550]** and **Muthukumar and others v. Station House Officer [2008 (2) KHC 592]** . According to him, once this individual possession is reckoned separately, the offence under Section 22(c) would not have been attracted and in that case, the petitioners will be entitled to get statutory bail under Section 167(2) of the Cr.P.C. In this connection, the learned counsel placed reliance on **Bikramjith Singh v. State of Punjab [(2020) 10 SCC 616]** . According to the counsel, once it is found that it is intermediary quantity possessed by the petitioners, the maximum period available for investigation is 60 days; on completing the period of 60 days, the petitioners would get entitled to be released on bail statutorily as a matter of right and therefore, the final report laid thereafter has no effect at all. 4. The bail application has been strongly opposed by the learned Public Prosecutor. According to the learned Senior Public Prosecutor, final report has already been laid; here Section 29 of the NDPS Act is also attracted. Both the petitioners were Bail Appl.No.5562 OF 2021 5 found together in suspicious circumstances, there are every reasons to doubt the criminal conspiracy hatched by them and that was how after detailed investigation, Section 29 of the NDPS Act was incorporated. According to the learned Senior Public Prosecutor, the quantity held by the petitioners cannot be reckoned independently. So long as Section 22(c) of the NDPS Act is attracted. The embargo under Section 37 of the NDPS Act will come into play. The learned Public Prosecutor also made available the case diary for perusal. 5. Here the question is whether the quantity of MDMA seized from the petitioners should be reckoned together or should be reckoned independently. If it is reckoned independently, as rightly pointed out by the learned counsel for the petitioners, offence under Section 22(c) of the NDPS Act will not be attracted and in that case, on completion of 60 days, they would have been entitled to get statutory bail. After going through the materials on record and also the authorities cited by the learned counsel, I am not convinced that the petitioners are entitled to be released on bail at this stage. Firstly, it is the Bail Appl.No.5562 OF 2021 6 definite case of the prosecution that both the petitioners were found together in suspicious circumstances in a remote plantain garden and were in the process of dealing with narcotic drug. The investigating officer has every reason to think that they had reached there for the purpose of selling MDMA. Both of them were taken into custody together. Section 29 of the NDPS Act was incorporated after making elaborate investigation. Now we are only at the pre-trial stage. Even though charge sheet has already been laid, while dealing with a bail application, this Court is not expected to make a mini trial and to assume that the opinion formed by the Investigating Officer with regard to the conspiracy hatched by the petitioners has no basis. In my opinion, such an approach is erroneous 6. Secondly, the decisions cited by the learned counsel for the petitioners, that is **Mushaque** 's case (supra) and **Amarsingh** 's case (supra) have to be distinguished at this stage. In both the cases attack was against the conviction rendered by the trial court. Here, we have not reached that stage. We are only at the pre-trial stage. In both the decisions, the court had Bail Appl.No.5562 OF 2021 7 occasion to disbelieve the allegation of conspiracy hatched between the accused persons.. Therefore, both the decisions are distinguishable on facts. 7. Turning to **Muthu Kumar** 's case (supra), Division Bench of this Court was considering whether ganja possessed by two accused persons could be reckoned collectively or individually and the court on facts found that it could not have been considered collectively. There, as rightly pointed out by the learned Senior Public Prosecutor Section 29 was not alleged or incorporated. Therefore, the facts in that case also are not applicable in this case. 8. As noticed earlier, both the petitioners were found together, both of them carried MDMA and the Investigation Officer has reasons, after collecting materials, to think that both of them were moving together and were acting in furtherance of the criminal conspiracy hatched by them. At least at this stage, there is no material to dispute or to pin down that version. 9. To sum up, materials are wanting to take the case out of the Section 22(c) of the NDPS Act. As a necessary corollary, Bail Appl.No.5562 OF 2021 8 embargo under Section 37 of the Act comes into play. The bail application is dismissed. **Sd/K.HARIPAL JUDGE** **DCS/13.08.2021**