## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 BAIL APPL. NO. 1850 OF 2023**
**AGAINST THE ORDER/JUDGMENTCRMP 2046/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI**
**CR.NO.22 OF 2022 OF NILAMBUR EXCISE RANGE OFFICE, MALAPPURAM PETITIONER/3RD ACCUSED:**
MUHAMMED SADATH S/O SHOUKATHALI, AGED 30 YEARS, ATHANIKKAL HOUSE, KAVANOOR KAVANOOR, MALAPPURAM (DISTRICT), PIN – 673639.
BY ADVS. C.R.SIVAKUMAR BABILA K.K. VIJITHA V.S. S.SOORYA GAYATHRY
## **RESPONDENT/COMPLAINANT & THE STATE:**
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031.
BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28)
SENIOR PUBLIC PROSECUTOR SRI P G MANU
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22.03.2023, THE COURT ON 31.03.2023 DELIVERED THE FOLLOWING:
B.A.No.1850/2023 2
## _**A. BADHARUDEEN, J.**_
_**================================**_
_B.A.No.1850 of 2023_
_================================ Dated this the 31st day of March, 2023_
## _**O R D E R**_
This is an application for regular bail filed by the 3rd accused in Crime No.22 of 2022 of Nilambur Excise Range Office, Malappuram, under Section 439 of the Code of Criminal Procedure.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the case diary as such placed by the learned Public Prosecutor.
3. The prosecution case is that as per an information conveyed by the Excise Commissioner to Excise Inspector Muhammed Shafeeq on 11.09.2022 to the effect that Aslamudheen (1st accused), his wife Shifna.N.K, Muhammed Sadath and another native of Malappuram were transporting contraband in a Jeep
B.A.No.1850/2023 3
bearing Registration No.KL-07-Q-4579, Scooter bearing Registration No.KL-71-E-6911 Honda Scooter and Motor Bike bearing Reg.No.TN65AD 6976 Pulsar and the said information was recorded in writing at 6.30 pm. Thereafter, when search was conducted, 75.458 gram of MDMA was seized from the possession of the above persons. Accordingly, they were nabbed and crime alleging commission of offences punishable under Sections 22(c)
- & 29 of the Narcotic Drugs and Psychotropic Substance Act (`NDPS' for short hereinafter) was registered.
4. The learned counsel for the petitioner/3rd accused would submit that the allegation of the prosecution that they had recovered 75.458 gram of MDMA, is not correct. According to the learned counsel for the petitioner, the MDMA was transported in 3 vehicles, out of which 54.974 gram was seized from the 1 st accused, 6.715 gram from the 2nd accused and 8.388 gram from the 3rd accused and 6.235 gram from the 4th accused. Therefore, the MDMA seized from the 3rd accused is less than the commercial quantity and in such a case, the offence alleged by the prosecution
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under Section 22(c) of the NDPS Act against the 3rd accused would not attract and taking note of the above factual aspect, the petitioner, who has been in custody from 11.09.2022, may be released on bail, since the investigation prematurely completed.
5. Whereas the learned Public Prosecutor submitted that the contentions raised by the learned counsel for the petitioner on the submission that only 8.388 of MDMA was seized from the 3rd accused and the 3rd accused independently possessed the contraband, could not be countenanced. In this regard, the learned Public Prosecutor had given emphasis to the finding of this Court in B.A.No.8651/2022, when the 4th accused moved bail application raising similar contention. It is also pointed out that as per the report prepared under Section 42(1) of the NDPS Act itself, the search was based on a prior information that the accused herein were transporting the contraband in a jeep, a bike and a scooter and the said information was recorded at 6.30 p.m on 11.09.2022. Consequent to such information, when search was conducted, justifying the information, commercial quantity of contraband was
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seized from the accused herein and, therefore, the petitioner cannot raise a contention that he had possessed only the intermediate quantity. Therefore, he could be released on bail ignoring the restrictions contained in Section 37 of the NDPS Act.
6. A Division Bench ruling of this Court reported in [2008(2) KHC 592], _**Muthu Kumar & Ors. v. Station House Officer**_ , has been placed by the learned counsel for the petitioner to buttress this point that when the quantity of contraband seized from the 3rd accused is only 8.388 gram of MDMA, no offence under Section 20(b)(ii)(C) would attract against the petitioner. In the said decision, the Division Bench held as under:
_“Allowing the application, the Division Bench held:_
_In sub-section (2) it is stated that the limitations on granting bail specified in clause (b) of sub-section (1) are in addition to the limitations under the CrPC or any other law for the time being in force, on granting bail. The above section restricts the power of the Court in granting bail. The Public Prosecutor can oppose bail application on the ground mentioned in S.37(i)(ii). He can also oppose bail application on grounds mentioned under subsection (2), that is, all grounds allowed under law. Even_
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_if the Public Prosecutor opposes, it is for the Court to consider whether such opposition is correct or not while granting bail. In Jiju Maran's case the Court observed if the reasons given for opposing granting of bail were not sustainable or no reasons were given for opposing the bail, the Court has the discretion to grant bail. Even if the Public Prosecutor is not opposing the application, the Court should be conscious and should consider whether the grounds are existing for granting bail. In effect what is decided in Jiju Maran's case is that finally it is for the Court to decide whether the conditions are satisfied or not. In Jiju Maran's case, it is not stated that only on the two conditions mentioned under S.37(1)(ii) bail can be opposed by the Public Prosecutor.”_
7. In paragraph 4 against it was held that, _as far as this application is concerned, we are of the opinion that the question is mere academic. The applicants herein were charge sheeted for offences punishable under S.20(b)(ii)(C). The allegations in the charge sheet prima facie show that out of the total quantity of 31.150 k.grams of ganja, the 1st accused was found carrying 15 k.g and 50 grams folded in his waste, the 2nd accused was found in carrying 6 k.gms. In a bag and 5 k.gm in a suit case and 50 grams in his waste and 3rd accused was carrying 5 k.g in a bag and 50_
B.A.No.1850/2023 7
_grams in his waste. If that be so, even though total quantity as above is a commercial quantity, each of the accused was in possession of only a lesser than the commercial quantity. If the accused were not in possession of the commercial quantity, S.20(b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act will not apply. It is reported that the accused were in prison from 26.10.2007 and they had undergone 167 days imprisonment and the charge sheet was already filed. Considering the facts and circumstances of the case, we are of the opinion that this is a fit case for granting bail on stringent conditions._
8. The learned Public Prosecutor submitted that in the said case, prosecution alleged commission of offence under Section 20(b)(ii)(C) alone and no offence under Section 29 of the NDPS Act was alleged to be committed. Here the prosecution specifically alleges commission of the offence under Sections 20(b)(ii)(C) and 29 of the NDPS Act.
9. In fact, when the bail application filed by the 4th accused was considered by this Court, the 4th accused, from whom only
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6.235 of MDMA was seized, raised similar contention and this Court negatived the contention. The observation of this Court is as under:
_“6. xxx The contention raised by the petitioner that he was found in possession of only 6 gms of MDMA and the investigating agency has clubbed distinct offences together so as to make it an offence involving commercial quantity cannot be prima facie accepted at this stage especially going by the case of the prosecution that commercial quantity of MDMA was transported to the State jointly by all the accused and that the petitioner along with accused Nos.2, 3 and 4 went to Bangalore to procure the contraband and while transporting the same to Kerala, they were apprehended. xxxx”_
10. It is true that in _**Muthu Kumar & Ors. v. Station House**_
_**Officer**_ 's case ( _supra_ ), this Court carved out a difference in a case where 31.150 kg of Ganja was seized from accused 1 to 3, out of which 15.50 kg of Ganja was seized from the 1st accused, 11.50 kg from the 2nd accused and 5.50 kg from the 3rd accused. On perusing the Division Bench ruling, the Division Bench did not consider the impact of Section 29 and the facts of that case also are not similar to the facts of this case. Here, the prior information itself was that Aslamudheen (1st accused), his wife Shifna.N.K, Muhammed Sadath and another native of Malappuram were transporting
B.A.No.1850/2023 9
contraband in 3 vehicles, viz., a Jeep bearing Registration No.KL07-Q-4579, Scooter bearing Registration No.KL-71-E-6911 Honda Scooter and Motor Bike bearing Reg.No.TN65AD 6976 Pulsar and the said information was recorded in writing at 6.30 pm. Thereafter, when search was conducted, 75.458 gram of MDMA was seized from the possession of the above persons and consequential recovery was effected jointly. That apart, in this crime, commission of offence under Section 29 of the NDPS Act also is alleged and Section 29 provides for punishment for abetment and criminal conspiracy. In _**Muthu Kumar & Ors. v. Station House Officer**_ 's case ( _supra_ ), this Court not considered the impact of Section 29, since in the said case, prosecution did not allege commission of offence under Section 29 of the NDPS Act. Similarly, the impact of Section 8(c) of the NDPS Act also was not considered in _**Muthu Kumar & Ors. v. Station House Officer**_ 's case ( _supra_ ). Therefore, the said contention raised by the learned counsel for the petitioner is found against.
11. Reading the genesis of the prosecution case and
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subsequent recovery of commercial quantity of MDMA jointly from the possession of accused 1 to 4, there is no reason to read the complicity of the petitioner confining the same to possession of intermediate quantity to grant him regular bail, diluting the rigour under Section 37 of the NDPS Act.
Therefore, this petition cannot succeed and accordingly the same is dismissed.
_Sd/-_
_**(A. BADHARUDEEN, JUDGE)**_
_rtr/_
