## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE K.HARIPAL**
**MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943**
**BAIL APPL. NO. 258 OF 2022**
**CRIME NO. 4/2021 OF ALUVA EXCISE RANGE OFFICE, ERNAKULAM**
**S.C. NO. 999/2021 OF FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM PETITIONER/ACCUSED:**
**NITHIN NATH T.V AGED 27 YEARS**
**THOTTUNGAPURACKAL HOUSE, VELLIYAMCODE**
**MALAPPURAM, PIN - 679579**
**BY ADVS.V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN**
**APPU BABU MAMATHA S. ANILKUMAR RALPH RETI JOHN SHIFNA MUHAMMED SHUKKUR ANILA T.THOMAS**
## **RESPONDENT:**
**STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA**
**ERNAKULAM, PIN - 682031**
**BY SMT. SREEJA V., SENIOR PUBLIC PROSECUTOR**
**THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.02.2022, THE COURT ON 28.02.2022 PASSED THE FOLLOWING:**
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## **O R D E R**
This is an application filed under Section 439 of the Criminal Procedure Code seeking bail to the petitioner who is the second accused in NDPS Crime No. 4/2021 of Excise Range Office, Aluva. That crime was detected on 20.03.2021 at early hours by the Sub Inspectors of Railway Protection Force from near the railway goods yard at Aluva. Going by the prosecution records, that day, at wee hours at 1.35 A.M., the petitioner/the second accused and the first accused were found moving through the railway goods yard along with two trolley bags being pulled by them. Getting suspicious of their movement, both were intercepted and following the procedural formalities, when the contents of the trolley bags were examined in the presence of independent witnesses, it were found containing dried ganja. The trolley bags carried by the first accused contained 22.5 kgs whereas the petitioner/second accused carried 20 kgs of dried ganja. Both of them were arrested along with the contraband
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and since then, they are in judicial custody. Later the records were handed over to the Excise Range where the crime was registered as Crime No. 4/2021 and on conclusion of investigation, charge sheet has been laid before the Special Court, the Additional Sessions Court - I, Ernakulam where the case is pending as S.C. No. 999/2021. This is the third application for bail moved by the petitioner.
2. In earlier two applications, the main argument of the petitioner was that, the contraband carried by him was at the most 20 kgs which included seeds and leaves, if a single gram is deduced towards seeds and leaves that would fall short of 20 kgs and therefore, it would cease to become commercial quantity and the embargo under Section 37 of the NDPS Act, hereinafter referred as the Act, will cease to work against him. Other mitigating circumstances that he is a Marine Engineer, that he has no criminal antecedents, that he is the son of a widowed mother etc. were also raised. On both the occasions, those contentions were repelled by
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this Court. Now the petitioner has moved this third application.
3. This time, the learned counsel for the petitioner argued that so far the chemical examination report has not been received, even though the final report is laid it is not yet confirmed that the contraband is ganja attracting offence under the Act. Secondly, there is considerable delay in producing the material object in court, even though the item was seized on 20.03.2021 and the contraband was produced before court, the learned Magistrate had returned it with an endorsement that it should be produced on the next working day. But later, it had reached the court only on 23.03.2021 and there is absolutely no evidence as to the safe custody of the item. The items had reached the Special Court still later. Relying on Annexure-A6 seizure mahazar, the learned counsel pointed out that samples were not collected from the spot and it was later, only on 23.03.2021, it was produced for issuing certification under Section 52A of the Act. According to the learned counsel, even though a certificate was issued under Section 52A of the Act, a certificate
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under Section 52A(2)(c) of the Act is wanting which also is fatal to the prosecution. So the learned counsel submitted that in the above setting, conviction would be an impossibility. The counsel also relied on the decision reported in **Faijas v. State of Kerala [2020 KHC 5259]** . According to the learned counsel, even if custody cases are given priority, given the pendency position of the trial court, this case cannot be taken up for trial for the next four years, until then the petitioner may not be kept in judicial remand.
4. I heard the learned Senior Public Prosecutor also who said that the charge sheet has already been laid, that it is commercial quantity of ganja seized from both the accused. Now the petitioner and the co-accused face allegations under Sections 20(b)(ii)(C) and 29 of the Act, that there are materials to connect the involvement of the accused persons. Therefore, they are liable to be prosecuted. The petitioner was arrested from the place of occurrence itself i.e., near from the goods shed yard on 20.03.2021 and since then he is in judicial custody. She strongly opposed the application.
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5. After hearing counsel on both sides, this court regrets to uphold the arguments of the learned counsel for the petitioner. Firstly, it was stated that there is a delay in producing the material objects before court. It is shown that the detection was done on 20.03.2021. On the same day itself, it was produced before the Magistrate and endorsement on Annexure A5 indicates that the Magistrate had returned the same to produce before court on the next working day. Possibly, the item might have produced at odd hours before the residence of the Magistrate. Then it is only natural that the items were returned to be produced before court on the following working day. 20.03.2021 is a Saturday. The Annexure A5/2, at page No. 29 of the paper book indicates that on 23.03.2021, i.e., on the following Tuesday, the items were produced before court and the Magistrate had entertained the same. Similarly, Annexure A7, at page No. 40 shows that the certification under Section 52A(3) of the Act was issued by the learned Magistrate on 23.03.2021 itself on the Annexure 2 application filed by the Circle
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Inspector of Excise.
6. The learned counsel wanted to say that the delay from 20.03.2021 to 23.02.2021 has to be explained by the prosecution, if not it is fatal to the case. But two aspects requires to be highlighted. As indicated earlier, on 20.03.2021 itself, the item was produced and it was returned to be produced on the next working day. On the next working day it is not seen produced, but on Tuesday, it is seen produced before court and that certificate was issued by the Magistrate on the same day. The question whether it was kept under safe custody etc., can be decided only after taking evidence. While considering a bail application, as rightly pointed out by learned Senior Public Prosecutor, it is too early for this Court to make a pronouncement that the delay is fatal, that it was not kept in safe custody etc. If such a pronouncement is made by this Court, that would be the end of the proceedings and that would prejudice the prosecution case and the ultimate trial of the case. Therefore, the delay aspect cannot be considered at this stage.
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7. The second argument is that there is no certificate under Section 52A(2)(c) by the learned Magistrate. But when it was pointed out that such a certificate is there, the learned counsel said that there is no separate certificate on the sample taken by the Investigating Officer.
8. But a certification as provided in Annexure 2 given format is shown issued by the Magistrate. The wording of the said certificate in the notification, after Annexure 2 is as follow:-
“I allow the above application under sub-section (3) of section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 and hereby, certify the correctness of the enclosed inventory the enclosed photographs taken and the list of samples drawn in my presence.”
9. That means, a certificate has been issued by the learned Magistrate on 23.03.2021 itself, which takes care of samples drawn as well. The learned counsel could not bring to my notice any further certification is necessary on the samples collected, separately. Therefore, that argument also cannot be upheld.
10. The learned counsel further submitted that the
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contraband includes seeds and leaves and if a milligram is reckoned towards seeds and leaves that would fall short of commercial quantity of 20 kg and therefore, the embargo under Section 37 of the Act will not be attracted. This aspect has already been considered by this Court in the earlier orders. Such a view can be taken only if the 20 kgs allegedly carried by the petitioner is taken independently, ignoring the total quantity of 42.5 kgs seized from both the accused, taken together. Here, Section 29 of the Act is also alleged. Secondly, there are reasons, at least at this stage that both the accused persons were moving together; they started their journey from Andhra Pradesh together and were arrested together while carrying 22.5 kgs of ganja in one trolley bag and 20 kgs of ganja in another trolley. The nature and character of contraband seized from both were uniform. They were moving in the very same train. The prosecution has reasons to say that they had proceeded to Kerala from Andhra Pradesh carrying so much quantity of contraband after hatching conspiracy and were acting in concert. In the circumstances and in
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the light of the fact that Section 29 of the Act is involved, the embargo under Section 37 of the Act will be attracted.
11. Therefore, the application for bail cannot be considered. The learned Special Judge is directed to try and dispose of the case at the earliest taking into account the fact that the accused persons are in judicial custody for nearly a year.
The bail application is dismissed.
SD/-
**K.HARIPAL JUDGE**
**DCS/23.02.2022**
