Muhammed Kaiz v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 BAIL APPL. NO. 9013 OF 2023** **CRIME NO.42/2023 OF Kanjirappally Police Station, Kottayam** ## **PETITIONER/ACCUSED:** MUHAMMED KAIZ, AGED 21 YEARS S/O DILEEP E P, ILLATHUPARAMBIL (H), POOTHAKUZHY, KANJIRAPALLY VILLAGE, KANJIRAPALLY TALUK,KOTTAYAM DISTRICT, PIN – 686507. BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. ANILKUMAR C.R. PRERITH PHILIP JOSEPH K.S.KIRAN KRISHNAN ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. SENIOR PUBLIC PROSECUTOR SRI K.DENNY DEVASSY THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20.02.2024, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING: B.A.No.9013/2023 2 _**“C.R”**_ ## _**A.BADHARUDEEN, J.**_ ================================ _B.A.No.9013 of 2023_ ================================ _Dated this the 22[nd] day of February, 2024_ ## _**O R D E R**_ This is an application for regular bail, filed under Section 439 of the Criminal Procedure Code, by the petitioner, who is the 1[st] accused in Crime No.42/2023 of Kanjirappally Police Station, Kottayam, where the prosecution alleges commission of offences punishable under Section 22(c) & 20(b)(II)(A) and 29 of the Narcotic Drugs and Psycotropics Substances Act (`NDPS Act' for short). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary and report of the Investigating Officer, placed by the learned Public Prosecutor. B.A.No.9013/2023 3 3. The prosecution case, initially, at the time of preparing the search list was that the 1[st] accused possessed 300 ml of LSD stamp and 1 gram of Hashish at 8.10 p.m on 08.01.2023 and later when the contraband was weighed before the Magistrate, it was found that the LSD stamps recovered from the 1[st] accused (5 in numbers) would weigh 0.11 gram and the Hashis would come to 0.26 gram. Thereafter the 2[nd] accused was also arrested on the allegation that he had sold the contraband to the 1[st] accused herein. 4. It is submitted by the learned counsel for the petitioner that the contraband in this case when weighed in a carat weighing machine, it was found as 0.300 mg of LSD stamps and 0.1 gram of Hashish oil. Accordingly, it is submitted that when the same, if converted into grams, the same would come to a small quantity and therefore the petitioner deserves bail since Section 37 of the NDPS Act has no application in so far as intermediae quantity of B.A.No.9013/2023 4 contraband is concerned. He also pointed out that the petitioner, who has been in custody, for the last more than one year otherwise entitled for bail. 5. In so far as the weight conversion as argued by the learned counsel for the petitioner is not supported by any convincing data. 6. Strongly repelling these contentions, the learned Public Prosecutor categorically argued, relying on the recitals in the case diary, that when the 1[st] accused was arrested along with the contraband, the contraband was weighed in a balance made available, from a jewellery, and the weight of the LSD stamp was stated as 0.300 mg instead of 300 CT. But when the contraband was produced before the Magistrate, the same was weighed in the presence of Magistrate and it was found that the weight in gram in so far as LSD is concerned would come to 0.11 gram and the B.A.No.9013/2023 5 Hashis would come to 0.26 gram. Thus this fact was reported to the court and after investigation final report also was laid alleging that accused Nos.1 and 2 committed the above offences. It is also submitted that therefore the quantity of contraband involved in this crime is commercial in nature and a mistaken measurement shall not be adjudged in favour of the accused, that too, at the stage of considering bail. Therefore, there is no reason to relax the rider under Section 37 of the NDPS Act and the petitioner is not liable to be released on bail. It is also pointed out by the learned Public Prosecutor that in this case a very serious offence alleged to be committed where rider under Section 37 of the NDPS Act would apply and, therefore, the petitioner is not liable to be released on bial. He also placed a decision of the Apex Court reported in [2010 KHC 4631 : 2010(2) KLD 534 : 2010 (8) SCALE 594 : 2010 (4) KLT SN 11 : AIR 2010 SC 3594 : 2010 (9) SCC 85 : B.A.No.9013/2023 6 2010 CriLJ 4715 : 2011 (99) AIC 161 : 2010 (3) SCC (Cri) 1139], _**Dehal Singh & anr. v. State of Himachal Pradesh**_ to contend that on discrepancy in weight of samples by itself does not cast any doubt prosecution case. In the said decision the Apex Court held that _it is common knowledge that weighing scale and weight kept in the grocery – shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, in the facts and circumstances of this case, is not of much significance. Sample was taken by a common weighing scale and weight found in a grocery shop, whereas the weight in the laboratory recorded with precision scale. This would be evident from the fact that the weight of the sample recorded in the laboratory was 65.5606 gms. In this background, small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story._ B.A.No.9013/2023 7 7. Further in paragraph 12, after referring to the decision in [2008 KHC 5054 : 2008 (16) SCC 417 : 2008 (9) SCALE 681], _**Noor Aga v. State of Punjab & anr.**_ the Apex Court observed that _the diference in the weight at the time of taking samples and at the laboratory was considered material as in the said case the sample was taken by the Custom Officials at the Airport and the Court came to the conclusion that weight was taken from a precision scale. Further it is not only the discrepancy in the weight which led this Court to reject the case of the prosecution but had taken into consideration several other discrepancies to come to the said conclusion. This shall be evident from paragraph 98 of the judgment, which reads as follows:_ _`98. We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is_ B.A.No.9013/2023 8 _different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Cusoms Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.”_ 8. The learned counsel for the petitioner submitted that as the petitioner is a first time offender, he deserves bail because the trial could not be completed within a period of 6 months since the petitioner has been in custody for the last 13 months and he is a first time offender. The learned counsel for the petitioner relied on [2023 (3) KHC 212 : 2023 KHC OnLine 321], _**Fasil v. State of Kerala**_ in support of this argument. 9. Paragraphs 129 and 130 of the decision reported in _**Noor Aga v. State of Punjab & anr.**_ ( _supra_ ) have been also relied on by the learned counsel for the petitioner to contend that though the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case when the available materials B.A.No.9013/2023 9 cast doubt in so far as the quantity of the contraband, the same would give benefit in favour of the accused. 10. In _**Fasil v. State of Kerala**_ ( _supra_ ), this Court considered the rider under Section 37 and set out certain situations to dilute the rider under Section 37 of the NDPS Act relying on 3 decisions of the Apex Court (Two Bench decisions), where the Apex Court granted bail in cases involving commercial quantity of contraband. 11. On reading Section 37(1)(b) of the NDPS Act, the same provides that, notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-(i) the Public Prosecutor has been given an opportunity to oppose the application for such B.A.No.9013/2023 10 release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 12. Section 37(2) of the Act makes it clear that the limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations on granting of bail provided under the Code of Criminal Procedure, 1973. 13. In this connection, Section 436A of Cr.P.C also assumes significance and the same provides as under: _“Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or_ B.A.No.9013/2023 11 _without sureties;_ _Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties;_ _Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.”_ 14. In [2022 SCC OnLine 929], _**Vijay Madanlal Choudhary v. Union of India**_ **,** dealing with Section 45 of the Prevention of Money Laundering Act, a provision analogues to Section 37(1)(b) of the Act, which also starts with a _non-obstante_ _clause_ , the Supreme Court has held that: _The provision in the form of Section 436A of the 1973 Code, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution. For, it is a sanguine hope of every accused, who is in custody in particular, that_ B.A.No.9013/2023 12 _he/she should be tried expeditiously – so as to uphold the tenets of speedy justice. If the trial cannot proceed even after the accused has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him this lesser relief of considering his prayer for release on bail or bond, as the case may be, with appropriate conditions, including to secure his/her presence during the trial .... For, it is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending upto one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further... If the Parliament/Legislature provides for stringent provision of no bail,_ B.A.No.9013/2023 13 _unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time, at least before the acused undergoes detention for a period extending upto one-half of the maximum period of imprisonment specified for the concerned offence by law. In our opinion, therefore, Section 436A needs to be construed as a statutory bail provision and akin to Section 167 of the 1973 Code ... We must hold that Section 436A of the 1973 Code could be invoked by accused arrested for offence punishable under the 2002 Act, being a statutory bail.”_ Therefore, when bail is sought under Section 436A of Cr.P.C, the “twin conditions” in Section 37(1)(b) of the Act need not be satisfied, if the accused has undergone detention for a period extending upto one half of maximum sentence specified for that offence. 15. In [2023 KHC 7096 : 2023 LiveLaw (SC) 533 : 2023 SCC OnLine SC 1109 : 2023 KHC OnLine 7096], _**Rabi Prakash**_ B.A.No.9013/2023 14 _**v. State of Odisha** ,_ a two-Judge Bench of the Supreme Court has held that, prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, **the conditional liberty must override the statutory embargo created under Section 37(1)(b) (ii) of the Act** . In this case, the accused was in jail for more than three and a half years. 16. However, in [2022 KHC 6720 : 2022 KHC OnLine 6720 : AIR 2022 SC 3444], _**Narcotics Control Bureau v. Mohit Aggarwal**_ , a three-Judge Bench of the Apex Court had held that the twin conditions under Section 37(1)(b) of the Act have to be satisfied for releasing the accused on bail. It was a case in which the accused had remained in custody for a period of one year and three months. The Supreme Court held that the length of the period of custody of the accused could not be treated as persuasive B.A.No.9013/2023 15 ground for granting the relief of bail to the accused. 17. In [MANU/SC/1643/2022], _**Union of India v. Khalil Uddin**_ , where the High Court granted bail to the accused since the accused had undergone custody for a period about one year, the Apex Court held that, in the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. 18. Tracing the verdicts as regards to grant of bail in cases involving commercial quantity, where grant of bail is interdicted under Section 37 of the NDPS Act, the following decisions are relevant: ||**Sr.**<br>**No.**|**Judgment**|**Bench**|**Date of**<br>**judgment**|**Holding**|| |---|---|---|---|---|---|---| B.A.No.9013/2023 16 |1.|Badsha SK v. State<br>of West Bengal,<br>SLP (Crl.)<br>9715/2023|Two Bench of<br>the Hon’ble<br>SC|13/09/2023|Accused released on bail<br>since (1) they had been in<br>custody for over 2 years and<br>4 months (2) although<br>charges framed in August<br>2023, none of the<br>prosecution<br>witnesses<br>examined, hence trial yet to<br>commence (3) nature of the<br>contraband (100 bottles of<br>cough syrup<br>containing<br>codeine phosphate) and (4)<br>no<br>known<br>criminal<br>antecedents against the<br>accused| |---|---|---|---|---| |2.|Rabi Prakash v,<br>State of Odisha,<br>2023 SCC OnLine<br>SC 1109|Two Bench of<br>the Hon’ble<br>SC|13/07/2023|Prolonged incarceration<br>militates<br>against<br>fundamental<br>right<br>guaranteed under Article<br>21, and thus conditional<br>liberty must override<br>statutory embargo created<br>under S. 37(1)(b)(ii) of<br>NDPS Act. [Facts relied<br>on: The Accused who had<br>spent more than three<br>years in custody and has<br>no criminal antecedents.<br>Trial has commenced but<br>only 1 out of 19 witnesses<br>examined]| |3.|Mohd. Muslim v.<br>State (NCT Delhi),<br>2023 SCC OnLine<br>SC 352|Two Bench of<br>Hon’ble SC|28/02/2023|While granting bail, the<br>court would look at the<br>material in a broad<br>manner and reasonably<br>see whether the accused’s<br>guilt may be proved.<br>Grant of bail on the<br>ground of undue delay<br>cannot be said to be| B.A.No.9013/2023 17 |||||fettered by S. 37 of NDPS<br>Act given the imperative<br>of Section 436A of the<br>Code which is applicable<br>to offences under NDPS<br>Act too. The accused who<br>had spent 7 years and 4<br>months in custody was<br>released on bail.| |---|---|---|---|---| |4.|Dheeraj Kumar<br>Shukla v. State of<br>UP, 2o23 SCC<br>OnLine SC 918|Two Bench of<br>Hon’ble SC|25/01/2023|Though<br>commercial<br>quantity of contraband<br>was<br>recovered,<br>the<br>Accused had no criminal<br>antecedents and had spent<br>two-and-a-half years in<br>custody. While charges<br>have been framed, trial is<br>yet to commence. Hence,<br>the rigors of S. 37 could<br>be dispensed with.| |5.|Vijay Madanlal<br>Chaudhary v. UoI,<br>2022 SCC OnLine<br>929|Three Bench<br>of the Hon’ble<br>SC|22/07/2022|S. 436A of CrPC is a<br>wholesome<br>beneficial<br>provision<br>which<br>is<br>effectuating the right of<br>speedy trial guaranteed by<br>Article 21, and which<br>merely specifies the outer<br>limits within which the<br>trial is expected to be<br>concluded, failing which<br>the accused ought not to<br>be detained further.<br>The relief under 436A<br>cannot<br>be<br>granted<br>mechanically, and must be<br>considered on a case-to-<br>case basis (especially<br>since<br>the<br>proviso| B.A.No.9013/2023 18 |||||recognises that detention<br>can continue longer than<br>half of the period<br>prescribed for reasons<br>which are to be recorded<br>in writing and by<br>imposing terms and<br>conditions on release).<br>Under the PMLA, there is<br>no visible sign of these<br>protections<br>against<br>police's power of search<br>and arrest; it is in stark<br>contrast<br>with<br>the<br>constitutional protections<br>given also the reverse<br>presumption<br>against<br>innocence at stage of bail<br>under Section 45 of the<br>PMLA.| |---|---|---|---|---| |6.|NCB v. Mohit<br>Aggarwal<br>2022 SCC OnLine<br>SC 891|Three Bench<br>of the Hon’ble<br>SC|19/07/2022|Length of period of<br>custody or the fact that<br>charge-sheet has been<br>filed and trial has<br>commenced are not<br>considerations that can be<br>treated as persuasive<br>grounds for grant of bail<br>u/s. 37. Reasonable<br>grounds mean credible<br>and plausible grounds for<br>believing that the accused<br>is not guilty of the<br>offences charged with.<br>The court must also be<br>satisfied that the accused<br>is unlikely to commit the<br>offence while on bail.| B.A.No.9013/2023 19 |7.|Union of India v.<br>Rattan Mallik<br>(2009) 2 SCC 624|Two Bench of<br>Hon’ble SC|23/01/2009|While granting bail, the<br>twin conditions of S. 37<br>have to be mandatorily<br>satisfied.<br>The<br>term<br>‘reasonable<br>grounds’<br>means more than prima<br>facie<br>grounds<br>and<br>connotes<br>substantial<br>probable causes for<br>believing that the accused<br>is not guilty of the offence<br>he is charged with. The<br>Court is not called upon to<br>record a finding of ‘not<br>guilty’ but see whether<br>there are reasonable<br>grounds for believing that<br>the accused is notguilty.| |---|---|---|---|---| |8.|Intelligence<br>Officer, Narcotics<br>Control Bureau v.<br>Sambhu Sonkar<br>(2001) 2 SCC 562|Two Bench of<br>Hon’ble SC|02/02/2001|Section 37 of the NDPS<br>Act cannot be given a<br>liberal interpretation on<br>the justification that it<br>affects the personal liberty<br>of a citizen who is yet to<br>be tried. Bail granted by<br>the Hon’ble HC was<br>cancelled<br>considering<br>legislative intent of<br>curbing the practice of<br>giving bail on technical<br>grounds, and object of<br>making<br>stringent<br>provisions for control of<br>illicit traffic in drugs.| |9.|Babua v. State of<br>Orissa<br>(2001) 2 SCC 566|Two Bench of<br>the Hon’ble<br>SC|30/01/2001|It is to be seen whether<br>the accused would be<br>found guilty if the<br>allegations in the charge<br>are established. The| B.A.No.9013/2023 20 |||||Hon’ble Court held that it<br>could not be said that the<br>accused is not guilty, but<br>also it could not be said<br>that accused is guilty<br>since evidence has not<br>been completely adduced.<br>The liberty of a citizen<br>has to be balanced with<br>the interest of the society,<br>especially in cases where<br>drugs are involved since<br>the accused would indulge<br>in activities that are lethal<br>to society.<br>[In this case, the apparent<br>deadlock about the<br>accused’s guilt and<br>innocence was broken by<br>applying the principle of<br>safeguarding the greater<br>good of the society.]| |---|---|---|---|---| |10|.Supreme Court<br>Legal Aid<br>Committee<br>(Representing<br>Undertrial<br>Prisoners) v. Union<br>of India<br>1994 (6) SCC 731|Two Bench of<br>Hon’ble SC<br>(Ahmadi,<br>Hansaria, JJ.)|07/10/1994|To refuse bail on one hand<br>and to delay trial on the<br>other is clearly unfair and<br>unreasonable and contrary<br>to Articles 14, 19 and 21<br>of the Constitution. The<br>following directions were<br>passed insofar as it related<br>to<br>the<br>State<br>of<br>Maharashtra:<br>1. For<br>persons<br>accused<br>of<br>offences<br>prescribing<br>imprisonment of 5<br>years or less, if the<br>accused has spent| B.A.No.9013/2023 21 ||half<br>the| |---|---| ||punishment| ||provided<br>in| ||custody, he shall| ||be released on bail| |2.|For<br>persons| ||accused<br>or| ||offences| ||prescribing| ||imprisonment| ||exceeding 5 years| ||and fine, if the| ||accused has spent| ||half<br>the| ||punishment| ||provided<br>in| ||custody, he shall| ||be released on bail| ||provided that the| ||bail amount shall| ||not be less than| ||Rs. 50,000/- with| ||two sureties for| ||like amount| |3.|For<br>persons| ||accused<br>of| ||offences| ||prescribing| ||minimum| ||imprisonment of| ||10 years and| ||minimum fine of| ||Rs, 1,00,000/-, if| ||the accused has| ||spent five years in| ||custody, he shall| ||be released on bail| ||provided that the| ||bail amount is Rs.| ||1,00,000/- with| B.A.No.9013/2023 22 |two sureties for| |---| |like amount| |4. For<br>undertrial| |accused who is| |charged<br>for| |commission of an| |offence<br>under| |sections 31 and| |31A, he shall not| |be released on bail| |General conditions for| |undertrial accused entitled| |to bail in accordance with| |this order:| |1. He<br>shall<br>deposit| |passport, and if not| |holding a passport shall| |file an affidavit to that| |effect| |2. He shall present himself| |at the police station that| |prosecuted him on a| |monthly/fortnightly/wee| |kly basis, unless leave| |of absence is obtained in| |advance| |3. Bail and fine shall not| |be available to those| |who are likely to tamper| |with<br>evidence<br>or| |influence<br>the| |prosecution witnesses| |4. Foreigners shall have| |their<br>passports| |impounded and the| |Special Judge shall| |insist on certificate of| |assurance from the| |Embassy<br>/<br>High| |Commission of that| B.A.No.9013/2023 23 |||||country stating the<br>accused shall not leave<br>the country and shall<br>appear before the Court<br>whenever required<br>5. He shall not leave the<br>area without permission<br>of the Special Judge<br>6. The Special Judge is at<br>liberty to cancel bail if<br>any of the above<br>conditions are violated<br>Priority will be accorded<br>to<br>those<br>undertrial<br>prisoners who have not<br>been released| |---|---|---|---|---| |11|.<br>Narcotics Control<br>Bureau v. Kishal<br>Lal, (1991) 1 SCC<br>705|Two Bench of<br>the Hon’ble<br>SC|29/01/1991|In case of inconsistency<br>between S. 439 CrPC and<br>S. 37 NDPS Act, the latter<br>will prevail. The powers<br>of High Courts to grant<br>bail u/s. 439 CrPC are<br>subject to limitations<br>contained in the amended<br>s. 37 of NDPS Act.| 19. Thus divergent views could be noticeable while interpreting Section 37 of the NDPS Act. 20. When there are conflicting views on the same point, it is well settled that the decision of the larger Bench or the decision B.A.No.9013/2023 24 of a co-equal Bench renderd in earlier point of time to be followed as the binding precedent, decisions rendered taking a divergent - view by the coordinate Bench (Bench of co equal strength) or a lesser Bench could not be followed. If the above principle is applied, the law is to be followed is as held in _**Narcotics Control Bureau v. Mohit Aggarwal**_ ( _supra_ ). 21. On evaluation of the verdicts herein above referred, it is noticed that judgments were rendered with divergent views. However, it is well settled precedent in law that when there is a . larger Bench decision declaring a law, i.e the binding decision 22. By applying the said principle, the decision reported in _**Fasil v. State of Kerala**_ ( _supra_ ), without considering the ratio of the 3 Bench decision in _**Narcotics Control Bureau v. Mohit Aggarwal**_ 's case ( _supra)_ , wherein the Apex Court categorically held that the length of period of cusotdy or the fact that the charge B.A.No.9013/2023 25 sheet has been filed and trial has commenced are not considerations that can be treated as pursuasive grounds for granting relief to the accused by relaxing the rider under Section 37 of the NDPS Act. Therefore, without satisfying the twin conditions under Section 37(2) of the NDPS Act, an accused, who alleged to have committed offence involving commercial quantity, is not liable to be released on bail. Therefore, it is held that the ratio in _**Fasil v. State of Kerala**_ ( _supra_ ) and other decisions on the same principles is not a good law to be followed. Therefore, the petitioner herein, who was involved in an offence involving commercial quantity of contraband, cannot be released on bail diluting the rider under Section 37 of the NDPS Act. Although it is argued by the learned counsel for the petitioner with a view to read the quantity of contraband as less than commercial quantity, such argument could not be justified as per the prosecution B.A.No.9013/2023 26 records. The prosecution records would justify seizure of commercial quantity of contraband from the 1[st] accused. 23. Before conclusion it is held that following the decision in _**Vijay Madanlal Choudhary v. Union of India**_ 's case _(supra)_ , when an accused who alleged to have committed offences where the rider under Section 37 of the NDPS Act would apply, if he has undergone detention for a period extending upto one half of the maximum period of sentence specified for the offence under the law, he shall be released by the Court on his personal bond with or without sureties. 24. In the result, this Bail Application shall stand dismissed. The Registry shall forward copy of this order to all the Sessions Courts and Special Courts, with direction that the directions in _**Fasil v. State of Kerala**_ 's case ( _supra_ ) and the other decisions on the said ratio shall not be followed and the ratio in B.A.No.9013/2023 27 _**Narcotics Control Bureau v. Mohit Aggarwal**_ 's case ( _supra)_ shall be followed, to consider the rigour under Section 37 of the NDPS Act _._ _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.9013/2023 28 ## **APPENDIX OF BAIL APPL. 9013/2023** PETITIONER'S ANNEXURES Annexure-I A TRUE COPY OF THE FIR IN CRIME NO 42/2023 OF KANJIRAPALLY POLICE STATION. Annexure-II A TRUE COPY OF THE ORDER DATED 07.09.2023 IN BA NO 5145/2023. Annexure-III AN ACCUSED COPY OF THE ORDER DATED 19.09.2023 IN CRL MC NO 192/2023.