Sajil K.S. v. State of Kerala and The Station House Officer, Kunnamkulam Police Station

B.A.No.1928/23 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945_ ## _BAIL APPL. NO. 1928 OF 2023_ _CRIME NO.1112/2022 OF Kunnamkulam Police Station, Thrissur AGAINST THE ORDER/JUDGMENTFIR 1112/2022 OF DISTRICT COURT & SESSIONS COURT,THRISSUR_ ## _PETITIONER/2ND ACCUSED:_ _SAJIL K.S, AGED 24 YEARS, S/O.SANTHOSH, KALARIKKAL HOUSE, CHOONDAL VILLAGE, CHOONDAL DESOM, THRISSUR DISTRICT, KERALA, PIN – 680 502._ _BY ADVS. P.MOHAMED SABAH SAIPOOJA(K/001130/2016) LIBIN STANLEY(K/250/2015)_ ## _RESPONDENT/COMPLAINANT:_ _1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031._ _2 THE STATION HOUSE OFFICER KUNNAMKULAM POLICE STATION, KUNNAMKULAM P.O, THRISSUR RURAL, KERALA, PIN – 680 503._ _THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ B.A.No.1928/23 2 ## **O R D E R** This is an application filed u/s 439 of Code of Criminal Procedure seeking regular bail. 2. The petitioner is the 2[nd] accused in Crime No.1112 of 2022 of Kunnamkulam Police Station. Offences alleged against the petitioner and other accused are under Sections 22(c), 22(b) and 20(B)(ii)A of the NDPS Act. 3. The prosecution case is that, on 05.09.2022 at 11.30 PM the accused persons, total three in number, were found travelling in a Honda City car and on body search, accused No.1, was found in possession of L.S.D (Lysergine) weighing 0.44 gm, and Nitrazepam tablets weighing 23.65 gm, 2[nd] accused was found in possession of 6.50 gm of Ganja and the 3[rd] accused was found in possession of 17.45 gm of Ganja. The crime was registered in such circumstances and the contraband articles were seized. Since the day of arrest the petitioner is in judicial custody. This application for regular bail is submitted in such circumstances. 4. Heard Sri.Mohamed Sabah, learned counsel for the B.A.No.1928/23 3 petitioner and Smt.Seetha S., learned Public Prosecutor for the State. 5. The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, the contraband article in commercial quantity is recovered from the possession of the 1[st] accused, that too was affected from his body search. As far as the petitioner is concerned, the contraband article recovered is small quantity and therefore, he is entitled for bail. He places reliance upon the decisions rendered by the Honourable Supreme Court in **Amarsingh Ramjibhai Barot v. State of Gujarat [2005(6) Supreme 323]** , **Union of India through Narcotics Control Bureau, Lucknow v. Md.Nawaz Khan [(2021) 10 SCC 100]** and **Mushaque Ahammed @ Muthu, S/o.Shaik Ali v. Sub Inspector of Police [2020 (3) ILR (Ker) 307]** . 6. On the other hand, the learned Public Prosecutor opposes the said prayer by pointing out that from the possession of all the accused persons who were travelling in the car the contraband articles were recovered. Merely because of the B.A.No.1928/23 4 reason that the commercial quantity was recovered from the other accused, the petitioner cannot be absolved from the liability of transporting the contraband article in commercial quantity. Reliance was also placed by the learned Public Prosecutor on **Union of India through Narcotics Control Bureau, Lucknow v. Md.Nawaz Khan [(2021) 10 SCC 100]** . Dismissal of the application was sought in such circumstances. 7. I have gone through the records. It is evident as rightly pointed out by the learned Public Prosecutor that, the petitioner found travelling in the car along with the contraband articles. As regards the contention raised by the learned counsel for the petitioner, I am of the view that the same cannot be accepted. In **Union of India through Narcotics Control Bureau, Lucknow v. Md.Nawaz Khan** (supra) **,** the Honourable Supreme Court in paragraph Nos.22 to 25 observed as follows: 22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in **Supdt. & Remembrancer of** B.A.No.1928/23 5 **Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038 :** **AIR 1980 SC 52]** to work out a completely logical and precise definition of “possession” uniform[ly] applicable to all situations in the context of all statutes. 23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. [xxx] 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.” What amounts to “conscious possession” was also considered in **Dharampal Singh v. State of Punjab, 2010 (9) SCC 608,** where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle B.A.No.1928/23 6 with several persons as opposed to a private vehicle with a few persons known to one another. In **Mohan Lal v. State of Rajasthan, 2015(6) SCC 222,** this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge. 23. We have referred to the above precedents to reiterate the governing principles. At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court where evidence will be adduced. 24. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in **Union of India v. Rattan Mallik [2009(2) SCC 624],** a twojudge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court B.A.No.1928/23 7 observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1) (b) and there was non-application of mind by the High Court. 25. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under S.37(1)(b)(ii) of the NDPS Act.” 8. In the light of the aforesaid observations, it is evident that merely because of the reason that the commercial quantity was recovered from the possession of the co-accused, the petitioner cannot get away from the rigour of Section 37 of the NDPS Act. This is a matter to be decided during the course of trial. Prima facie there is a case made out as against the petitioner for transporting contraband article in commercial quantity. As regards the observations made by the Honourable Supreme Court in the decisions relied on by the learned counsel for the petitioner, which is **Mushaque Ahammed @ Muthu supra and Amarsingh** (supra), it is to be noted that both the said B.A.No.1928/23 8 cases were against the finding of conviction of the trial. These observations were made by the Honourable Supreme Court after examining the evidence adduced during the course of trial. Therefore, observations made therein cannot be applied in this case, particularly in the light of the observation in **Union of India through Narcotics Control Bureau, Lucknow v. Md.Nawaz Khan’s case,** which was specifically on the question of granting bail and also on the rigour under Section 37 of NDPS Act. In such circumstances, after considering all the relevant inputs, I am of the view that this is not a fit case in which bail can be granted to the petitioner. Accordingly, this bail application is dismissed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/26.7.23 B.A.No.1928/23 9 ## _APPENDIX OF BAIL APPL. 1928/2023_ ## _PETITIONER ANNEXURES_ _Annexure A1_ _THE TRUE COPY OF THE FIR IN CRIME. NO. 1112/2022 OF KUNNAMKULAM POLICE STATION, THRISSUR DATED 06.09.2022_ _Annexure A2 THE TRUE COPY OF THE SEIZURE MAHAZAR IN CRIME. NO. 1112/2022 OF KUNNAMKULAM POLICE STATION, THRISSUR DATED 06.09.2022_ _Annexure A3 THE TRUE COPY OF THE ORDER DATED 02.11.2022 IN CRL.M.P.NO.3212/2022 OF THE I- ADDITIONAL SESSIONS COURT, THRISSUR_ _Annexure A4 THE TRUE COPY OF THE ORDER DATED 30.11.2022 IN CRL.M.P NO. 3683/2022 OF THE I- ADDITIONAL SESSIONS COURT, THRISSUR_