SAHARATH V.P. v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **Bail Appl..No.4070 OF 2020** **AGAINST THE ORDER/JUDGMENT IN SC (NDPS) 41/2020 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA** **CRIME NO.521/2019 OF Panniankara Police Station , Kozhikode** **IN SC (NDPS) 41/2020, SPECIAL COURT (NDPS ACT CASES), VADAKARA** ## **PETITIONER/ACCUSED:** **SAHARATH V.P. AGED 44 YEARS S/O.MUHAMMED KOYA, VALIYAKAM PARAMB HOUSE, KALLAYI (PO), KOZHIKODE DISTRICT - 673 003. 673003** ## **BY ADV. SRI.P.V.ANOOP** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.C.N.PRABHAKARAN SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30.07.2020, THE COURT ON 21.10.2020 PASSED THE FOLLOWING:** BA 4070/2020 2 ## ASHOK MENON, J. ------------------------------------ ## BA No.4070 of 2020 ------------------------------------- Dated this the 21[st] day of October, 2020 ## ORDER Application for regular bail under Section 439 Cr.P.C. The applicant is the accused in Crime 521/2019 of Panniyankara Police station,Kozhikkode for having allegedly committed an offence punishable under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). The investigation is over and the final report has already been filed and taken on file of the Court of the Special Judge for NDPS case Vadakara as S.C. 41/2020. 2. The prosecution case, in brief, is that on 07/12/2019 at about 11:40 AM, the Police officers apprehended the accused near the goods shed yard of the Kallai Railway Station under suspicious circumstances, on search he was found to be in possession of 2830 capsules BA 4070/2020 3 weighing 1750 grams of Spasmo Proxyvon containing Tramadol, commercial quantity of a psychotropic substance, violating the provisions of the NDPS Act. He was remanded consequent to his arrest and continues in judicial custody. The applicant had filed an application for statutory bail under Section 167 (2) Cr.P.C read with Section 36A(4) of the NDPS Act as Crl. M.P No.275/2020 before the Designated Court and the same was dismissed vide Annexure-2 Order. The final report in an NDPS case has to be filed within the statutory period of 180 days. There is no dispute that the final report in the instant case was filed on 16/03/2020 as evident from Annexure-1. The applicant would contend that the final report which was filed on time by the investigating officer, was return for curing some defect and subsequently, it was filed only after the expiry of the statutory period and hence the applicant ought to have been given the benefit of mandatory bail under Section 167 (2) Cr.P.C., read with Section 36A(4) of the NDPS Act. BA 4070/2020 4 3. Heard Shri P.V. Anoop, the learned counsel appearing for the applicant and Shri C. N. Prabhakaran, the learned Senior Public Prosecutor. Records perused. 4. The learned counsel appearing for the applicant argues that there is no provision for return of the final report under Section 173 of the Cr.P.C to cure the defects. The prosecution did not seek any extension of time for further investigation. The chemical analysis report was not filed along with the final report. Subsequent inclusion of chemical analysis report is illegal. The final report was resubmitted only on 11/06/2020 much beyond the period stipulated under Section 36A (4) of the NDPS Act. 5. Yet another point urged by the learned counsel for the applicant is that the prosecution is not sure of the substance which was seized from the applicant. Annexure-1 final report indicates that Spasmo Proxyvon was seized from the accused. In the seizure mahasar produced as additional Annexure-1, the contraband is described as “SPM-PRX + BA 4070/2020 5 WOCKHARDT” capsules and that the detecting officer was convinced that it was “ Spasmo Provixon plus” drug. The list of property which was produced before the designated Court, a copy of which is additional Annexure-2 indicates that the sealed packets contained capsules nameed as “SPM-PRX + WOCKHARDT”. The applicant has also produced a copy of the statement of the detecting officer recorded under Section 161 Cr.P.C, as additional Annexure-3 which indicates that the substance seized from the accused was “SPM-PRX + WOCKHARDT” “ Spasmo Provixon plus” containing Tramadol. The learned counsel would therefore submits that the entire prosecution case is proved to be untrue and unsustainable. Under the circumstances there is any indication that the applicant is not guilty and therefore the embargo under Section 37 (1) (b) (ii) of the NDPS Act would not be attracted in this case. The learned counsel also submits that Spasmo Proxyvon is a drug containing more of paracetamol and lesser quantity of Tramadol. In case the Psychotropic substance BA 4070/2020 6 Tramadol alone is taken into consideration, it cannot be said that the applicant is in possession of commercial quantity of the substance. A description of the manufacturer on the tablets specifies the exact quantity of Tramadol added as ingredient to each tablet. 6. Per contra the learned Senior Public Prosecutor submits that when the charge sheet is returned by the Court for rectifying certain errors, it cannot be said that no final report has been filed at all. In the instant case the final report was filed on time. Annexure-2 Order of the Designated Court indicates that the final report was filed by the investigating officer well within the time stipulated. However, copies of some records to be handed over to the accused and copy of the Drug Disposal Commitee were not seen produced. Hence, to rectify is those errors the final report was returned. The learned Prosecutor also relies on the decisions reported in Shino Paul and Others v. State of Kerala and Others [2010 (1) KLT 339] , in support of his argument that return of the final BA 4070/2020 7 report for curing certain errors of defects by the Court does not tantamount to non-filing of the final report within the stipulated time. He also relies on Hira Singh and Another v. Union of India and Another [2020 (2) KHC 551 (SC)] to argue that in case where psychotropic substances seized contain a mixture of one or more neutral substances, the neutral substances cannot be excluded to determine whether the quantity seized is the small, intermediary or commercial. 7. After having anxiously considered the entire arguments placed by the learned counsel for the applicant and the learned Senior Public Prosecutor, and also on perusal of the records, as regards the claim of the applicant for statutory bail under Section 36A(4) of the NDPS Act, I find that the return of the final report by the Designated Court for curing certain defects will not in any way affect the prosecution claim of having filed the final report within the stipulated time. In Shino Paul and Others v. State of Kerala and Others [2010 (1) KLT 339] this Court has after considering various precedents of the BA 4070/2020 8 Hon'ble Supreme Court on this point, held as follows:- “In the present case, the charge – sheet was filed well within time. Even though the learned Magistrate returned the charge - sheet, it cannot be held that the proviso to S.167(2) is attracted. I am not inclined to accept the contention of the petitioners that the case has to be dealt with as if no charge - sheet is filed.” 8. In Central Bureau of Investigation v. R. S. Pai and Another, [2002 (2) KLT 149 (SC) : 2002 (5) SCC 82] , relied upon by this Court in the decision in Shino Paul (supra), it was held that if a mistake is committed in not producing the relevant documents at the time of submitting the report or the charge - sheet, it is always open to the investigating officer to produce the same with the permission of the Court. In the case on hand, the charge - sheet was returned as defective. It implies permission to cure the defects. The defects were cured and the charge-sheet was re-presented. It cannot be said that the proviso to Section 167(2) Cr.PC would get attracted BA 4070/2020 9 enabling the accused to get default bail if the charge - sheet is re-presented, after curing the defects, beyond the period mentioned in the said proviso, when the charge-sheet was originally filed within time. 9. Yet another argument of the learned counsel appearing for the applicant regarding isolating the substance Tramadol alone from the drug Spasmo Proxyvon for the purpose of calculating the applicant was in possession of commercial quantity also cannot be accepted for the reason of the latest decision of the Hon'ble Supreme Court in Hira Singh and Another v. Union of India and Another [2020 (2) KHC 551 (SC)], a referrence to the larger Bench wherein after considering another decision of the Hon'ble Appex Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008 (2) KHC 323) , it was held as follows:- “10. In view of the above and for the reasons stated above, Reference is answered as under: (I) The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the BA 4070/2020 10 mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law; (II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;” The learned counsel for the applicant has also strenuously argued that the prosecution has apparently failed to establish that the applicant was in possession of Spasmo Proxyvon as the documents of seizure would indicate that it is Spasmo BA 4070/2020 11 Provixon that was seized. I would hold that the learned counsel for the applicant is attempting to create confusion out of an apparent spelling mistake in the seizure mahasar. There is no drug by the name Spasmo Provixon in existence and what was seized was Spasmo Proxyvon Plus containing Tramadol. In the year 2018, the Government had amended the schedule to the NDPS Act incorporating Tramadol as a prohibited Psychotropic substance. The possession of that substance by the applicant is therefore an offence. 10. Regarding the application of the embargo under Section 37 of the NDPS Act, I would refer to the judgement of the Hon'ble Supreme Court reported in Union of India (UOI) v. Shri Shiv Shanker Kesari [KHC 5675: 2007 (7) SCC 798] wherein it is held as follows:- “11. The Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable BA 4070/2020 12 grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.” In view of the above findings, I am of the opinion that the applicant is not entitled to either statutory bail under Section 36A(4) of the NDPS Act or for regular bail under Section 439 of the Cr.P.C. The application for bail is dismissed. Sd/- ASHOK MENON JUDGE jg