Sourav v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942** **Bail Appl.No.7403 OF 2020** **CRIME NO.23/2020 OF Thrissur Excise Range Office , Thrissur** ## **PETITIONER/S:** **SOURAV, AGED 22 YEARS, THITTAYIL HOUSE,THAMMANAM, POONITHURA, ERNAKULAM – 682032.** **BY ADV. SRI.K.R.VINOD** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031.** ## **OTHER PRESENT:** **SRI.B.JAYASURYA, SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30.11.2020, THE COURT ON 11.01.2021 PASSED THE FOLLOWING:** _B.A.No.7403 of 2020_ 2 ## **O R D E R** ## **Dated this the 11th day of January 2021** Application for regular bail under Section 439 of the Cr.P.C. 2. This is a successive application for bail filed by the applicant after his erlier application was dismissed by this Court. The applicant is the 2nd accused in Crime No.23/2020 of Excise Range Office, Thrissur for having allegedly committed offences punishable under Sections 22(b) and 22(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). 3. The prosecution case, in brief, is that the applicant had as a part of criminal conspiracy with the 1st accused, was carrying 0.780 gms of MDMA in the right pocket of his jeans and the 1st accused carrying 1.74 gms of MDMA and 0.174 gms of LSD and they were intercepted by the excise officials while they were travelling in a motorcycle and the crime was registered against them for the aforesaid offences. _B.A.No.7403 of 2020_ 3 4. The applicant would contend that individually he was only in possession of an intermediary quantity of psychotropic substance. There is absolutely no material to indicate that both the accused had conspired together or had in furtherance of the common intention carried the drugs for any particular purpose. Hence, it can only be held that the applicant was in possession of an intermediary quantity of drug and his possession alone needs to be considered. If that be so, the offence under Section 22(c) read with Section 29 of the NDPS Act would not be attracted and consequently, the rigour under Section 37 of the NDPS Act also will not be attracted. Hence, he is entitled to grant bail since he is in judicial custody since 15.09.2020. 5. Heard the learned counsel for the applicant and the learned Public Prosecutor. 6. The learned Counsel for the applicant had placed reliance on the decision of the Division Bench of this Court in _**Muthukumar & others v. Station House Officer [2008(2) KHC 592]**_ in support of his argument that the possession of each individual alone needs to _B.A.No.7403 of 2020_ 4 be considered at the time of considering the total quantity of narcotic drugs and psychotropic substance involved in the case. 7. The learned Public Prosecutor would indicate that in the above cited decision offence under Section 29 of the NDPS Act was not incorporated, and therefore, individual possessions were taken into consideration and the Division Bench has also made it clear that the findings of the Division Bench at the time of granting bail to the applicant would not be applicable to the trial court during the trial and if in case materials were available regarding the total quantity involved, the trial court was at liberty to take an independent decision. In the instant case, there is a specific allegation that both the accused had the intention to deal with the drugs jointly and that there was a conspiracy involving both of them and that further investigation which is still going on would reveal the said aspect of the case. 8. The learned Counsel appearing for the applicant would contend that from the F.I.R. there is no such _B.A.No.7403 of 2020_ 5 indication of any conspiracy or abatement between the applicant and the 1st accused. Therefore, the applicant will have to be given the benefit of bail as far as investigation is still continuing and there is no material at present to indicate that the applicant and the 1st accused had committed the offence jointly or in furtherance of a conspiracy. The learned Counsel also points out to the insufficiency of compliance of Section 50 of the NDPS Act stating that the detecting officer himself had conducted the search after getting the permission of the accused and that no separate Gazetted Officer or Magistrate was called as required under Section 50. 9. After having considered the arguments advanced by both sides, and on perusal of the records that are available, it was found that the argument of the learned Counsel for the applicant could definitely be urged at the time of trial before the trial court. But the prosecution will have to be granted further time to conclude the investigation and to file a final report with regard to the alleged conspiracy or abetment _B.A.No.7403 of 2020_ 6 attracting an offence under Section 29 of the NDPS Act. It would be premature on the part of this Court to conclude that Section 29 is not attracted. Similarly, this Court also held that it would also be premature in concluding that the provisions under Section 50 NDPS Act have not been strictly complied with by the prosecution. Because it is a case where the Gazetted Officer was present and he was a member of the detecting party and that the accused had allegedly waived their right to get themselves examined by a separate Gazetted Officer or a Magistrate. All these questions were left open to be decided by the trial court. 10. The applicant has once again, come up reiterating all the aforesaid contentions seeking bail. He relies on the decisions of this Court in _**Jiju Maran v. Narcotic Control Bureau, 2004 KHC 647**_ and _**Basanth Balaram and Another v. State of Kerala, 2019(1) KHC**_ _**667**_ to fortify his argument to water down the rigour under Section 37 of the NDPS Act. In support of the strict compliance of Section 50 of the NDPS Act, he _B.A.No.7403 of 2020_ 7 relies on _**State of Rajasthan v. Parmanand and Another, 2014 KHC 4138: AIR 2014 SC 1384**_ . 11. In regard to cases where earlier bail applications have been rejected, there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted, then the said court will have to give specific reasons why in spite of such earlier rejection, the subsequent application for bail should be granted (See _**Ram Govind Upadhyay v.**_ ## _**Sudarshan Singh and Others [(2002) 3 SCC 598].**_ Bearing in mind the above principles which on facts are applicable to the present case also, it will have to be considered whether this successive application can be considered. ## 12. In _**Kalyan Chandra Sarkar v. Rajesh Ranjan,**_ _**2004 KHC 754 : AIR 2004 SC 1866**_ , the Apex Court held thus: > “ _20. Before concluding, we must note though an accused has a right to make successive_ _B.A.No.7403 of 2020_ 8 _applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications_ .” 13. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice. The Supreme Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In _**Union of India v. Ram Samujh and Ors., 1999 KHC**_ _**1542**_ , it has been elaborated as under:-- _"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death - blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and / or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court,_ _B.A.No.7403 of 2020_ 9 _dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa, 1990 KHC 699 as under:_ _“24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.”_ _8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in S.37, namely,_ _(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and_ (ii) _that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent - accused on bail. Instead of attempting to take a holistic view of the harmful socio – economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the Court should implement the law in the spirit with which Parliament, after due deliberation, has_ " _amended._ _B.A.No.7403 of 2020_ 10 In view of the above discussions, I find no grounds to reconsider the application for bail. The application has no merits and is dismissed. **Sd/-** **ASHOK MENON** _dkr_ **JUDGE**