Shanoob M. v. Sub Inspector of Police, Kasaba Police Station, Kozhikode City, and The State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 29TH DAY OF JANUARY 2018 / 9TH MAGHA, 1939** **Bail Appl..No. 224 of 2018** **CRIME NO.751/2017 OF KASABA POLICE STATION, KOZHIKODE** ## **PETITIONER/ACCUSED:** **SHANOOB M., S/O MAMUKOYA, AGED 23 YEARS, MANAKKANTAKAM HOUSE, KALLAI, KOZHIKODE.** **BY ADV.SRI. T.G. RAJENDRAN** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1. THE SUB INSPECTOR OF POLICE, KASABA POLICE STATION, KOZHIKODE CITY-673571.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR SRI.SAJJU S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** ## **RAJA VIJAYARAGHAVAN V., J** **-----------------------------------** ## **B.A. No.224 of 2018** **----------------------------------Dated this the 29[th] day of January, 2018** ## **ORDER** 1. This petition is filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner herein is the accused in Crime No.751 of 2017 of the Kasaba Police Station registered under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for brevity). 3. The prosecution allegation is that, on 17.11.2017, the petitioner was intercepted by the Inspector of Police, Kasaba and, on search, he was found in possession of 163 grams of LSD, a psychotropic substance. After complying with the formalities, the contraband articles were seized and he was arrested. He has been in custody since then. 4. The learned counsel appearing for the petitioner submits BA 224/2018 2 that the seizure has been effected violating all statutory provisions. More specifically, it is urged that the provisions of section 42 of the NDPS Act has been violated. A copy of section 42(2) has not been sent to the superior officer as contemplated under the statute. The learned counsel then urges that the chemical name of Lysergide, having other non proprietary names as LSD and LSD -25 is different in different tables appended to the Act thus creating a doubt as to whether the drug seized from the possession is in fact a prohibited drug. Two schedules are referred to by the learned Counsel; the first one relates to the list of Psychotropic substances and the 2[nd] one which enumerates the small quantity as well as commercial quantity in terms of Section 2 (viia )and 2 (xxiiia) of the Act . 5. It is then contended that a close scrutiny of the mahazer prepared at the time of seizure would show that 5 cubes of LSD were seized from his possession. No mention is made about the number of cubes which were seized from the BA 224/2018 3 plastic bag allegedly carried by the petitioner. According to the learned counsel, the report produced before the court discloses that in addition to 5 cubes, 36 cubes of LSD were seized from the yellow carry bag. The learned counsel would also refer to the list of items seized which is appended to the mahazer and it was contended that what was seized from the possession of the petitioner is only one item which is detailed as 163 gms of LSD. These discrepancies would be fatal entitling the petitioner to be enlarged on bail is the submission. 6. The learned Public Prosecutor has countered the submissions advanced by the learned counsel. It is submitted that the seizure was from a public place and in that view of the matter, Section 43 of the Act would apply. Much reliance was placed on the decision of the Apex Court in **Girish Raghunath Mehta V Inspector of Customs and Another** [2016 (16) SCC 200]. It is further submitted that mere non mention of the number of cubes which were BA 224/2018 4 seized from the bag carried by the petitioner is of no significance as the entire details of the seizure was described in the mahazer. The report of arrest and seizure as contemplated under the Act was submitted under Section 57 of the Act to the immediate official superior within the statutory period. The contraband articles were produced before the learned Magistrate on the next day itself and an inventory was prepared as contemplated under Section 52A of the Act. The samples of contraband has been forwarded for chemical analysis. It is further submitted that there is no discrepancy between the two tables as regards the chemical names. According to the learned Public Prosecutor, the list of Psychotropic Substances found in the table appended to the Act is prepared as per Clause (xxiii) of Section 2 of the NDPS Act, 1985 whereas the schedule mentioned of in terms of S.O. No.1055 (E) dated 19.10.2001 was prepared pursuant to the notification specifying small quantity and commercial quantity. It is further urged that a large quantity, BA 224/2018 5 categorised as commercial quantity of LSD was seized from the possession of the petitioner and in that view of the matter the parameters laid down under Section 37 of the NDPS Act, 1985 will have to be satisfied. Unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the petitioner cannot be released. Highlighting the deleterious effects and deadly impact of LSD, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities by traffickers such as the petitioner. The learned Public Prosecutor placed reliance on the decisions of the Apex Court in **Union of India (UOI) v. Shri Shiv Shanker Kesari** [(2007) 7 SCC 798] and **Union of India v. Ram Samujh and Another** [(1999) 9 SCC 429] to support his contentions. 7. I have considered the submissions advanced and have gone through the materials on record. BA 224/2018 6 8. It is evident that the seizure was effected from a public place and hence section 42 (2) of the Act may not apply. A report of the seizure however has been sent to the superior officer. Furthermore, **Girish Raghunath Mehta** (supra) reasserts the principle laid down by the Apex Court in the earlier decisions. No advantage can hence be given to the petitioner on that count. 9. The contention of the learned counsel that the mahazer is silent with regard to the seizure of LSD cubes from the bag cannot be sustained. It has been specifically mentioned that some number of cubes were found in the bag though the exact number has not been mentioned. However in the list attached to the mahazer the total weight of the LSD cubes seized from the possession of the petitioner has been specifically detailed. The contraband articles were produced before the learned Magistrate on the next day itself. Much significance cannot be given to the said aspect at this stage in view of the quantity seized from the possession of the BA 224/2018 7 petitioner. 10. The contention of the learned counsel that the chemical name of Lysergide given in various tables are different cannot be sustained. The table specifying small quantity and commercial quantity brought out as per notification No.S.O.1055 (E) dated 19.10.2001 was published in tune with Clause (vii-a) and (xxiii-a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 as amended in the year 2001 notifying small quantity and commercial quantity. The notification states that it is in supersession of all previous notifications that the schedule is published. The item was examined by the detecting officer and it was found that the contraband substance seized from the petitioner was LSD . The chemical analysis certificate has not been received till date. There is no discrepancy as argued by the learned counsel and the said contention is rejected. BA 224/2018 8 11. There cannot be any doubt that when bail is sought for in cases involving commercial quantity of narcotic substances, in view of Section 37 of the NDPS Act, bail can be granted only if the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) is “reasonable grounds” which expression means something more than prima facie grounds. As held in **Shiv Shanker Kesari** (supra), it connotes substantial probable causes for believing that the accused are not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused are not guilty of the offence charged. However, this Court while considering the application for bail with reference to Section 37 of the Act is not called upon to BA 224/2018 9 record a finding of not guilty. For the limited purpose of releasing the accused on bail, the court is called upon to see if there are reasonable grounds for believing that the accused are not guilty and records its satisfaction about the existence of such grounds. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail the accused are not likely to commit any offence and there should also exist some materials to come to such conclusion. 12. Having considered the submissions and after having gone through the materials on record, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. The petitioner has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not BA 224/2018 10 guilty of the offence charged. In that view of the matter, I am of the view that the petitioner is not entitled to be released on bail at this stage. I find no merit in this petition and the same is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** vps 29/1xx /True Copy/ PS to Judge