High Court of KeralaSingle Judge2022-11-01Bail application dismissed, with observations l...

Sreemon v. State of Kerala

Case / Petition Number:B.A. No. 8183 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Viju Abraham
Judgment Date: 2022-11-01
Court Decision / Holding: The bail petition is dismissed. The court notes the commercial quantity involved, the petitioner’s serious criminal antecedents, and the likelihood of involvement in the drug smuggling network as per the prosecution evidence, and states that the prima facie observations are limited to deciding this bail application and not a merits determination on trial.
Final Disposition: Bail application dismissed, with observations limited to bail considerations and not merits of the trial.

Parties to the Case

Appellants / Petitioners

Sreemon

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Assistant Excise Commissioner, Excise Crime Branch, Ernakulam District

Legal Representation & Advocates

Counsels for Petitioners

• Biju Antony Aloor
• K.P. Prasanth
• T.S. Krishnendu
• Archana Suresh
• Jinson Jacob
• Emil Shaju

Counsels for Respondents

• Advocate General Office, Kerala
• Additional Director General of Prosecution (AG-11)

Case Synopsis & Summary

This bail application relates to accused no.2 in SC No. 378/2022 pending before the Addl. District and Sessions Court, Ernakulam, concerning Crime No. 36/2022 of the Excise Range Office, Ernakulam. The petitioner, Sreemon, asserts that although the total contraband seized amounts to 83.896 g, only 12.218 g of MDMA were recovered from him, and argues that the contraband is methamphetamine hydrochloride, which is not listed in the NDPS Act’s Schedule and therefore is neither a narcotic nor a psychotropic substance. He contends that the MTM (methamphetamine hydrochloride) salt form is not covered; there is also a claim that annexure A3 and the chemical analysis do not establish narcotic/psychotropic status for the seized material, and that he was not in possession at the time of seizure since he had been incarcerated for over a year. The state counters that 83.896 g of MDMA was seized and 12.218 g recovered from him, with evidence of drug smuggling across routes to Kerala, including use of dogs and misrepresentation with a uniform photo to mislead authorities. It is argued that methamphetamine hydrochloride is a central stimulant and falls within NDPS via Note 1 of the Schedule. The court cites Sadiq Basha v. State to discuss bail standards and ultimately dismisses the bail petition, citing commercial quantity and serious antecedents, while noting that reasons are prima facie and not dispositive on merits.

Provisions of Law Cited

NDPS Act, 1985 – Sections 22(c), 25, 27A, 29NDPS Act, 1985 – Section 37NDPS Act, 1985 – Section 2(xxiii)Note 1 of the Schedule

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the total contraband seized is 83.896 g, but only 12.218 g of MDMA were recovered from him, and that the substance found is methamphetamine hydrochloride, which is not listed in the Schedule to the NDPS Act. He contends that methamphetamine hydrochloride is not a narcotic or psychotropic substance, and therefore the offences alleged under the NDPS Act may not lie against him. He argues that Annexure A3 and the chemical analysis report do not establish the quantitative assessment with respect to a neutral material, and he was not in possession of the contraband at the time of seizure. He also notes his earlier criminal history but asserts that bail should be granted if there is no material showing likely guilt or risk of flight, and that the court should not rely on speculation. He invokes the standard of bail under Section 37 of the NDPS Act and asks for mitigation given the period of confinement and the ongoing trial. respondents:The respondents submit that a total quantity of 83.896 g of MDMA was seized and 12.218 g recovered from the petitioner, who is said to be part of a drug-smuggling network that transported drugs from Chennai to Kerala, often masking them in vehicles with aggressive dogs and using fake NCC uniform imagery. They contend that methamphetamine hydrochloride is the hydrochloride salt form of methamphetamine and falls within the NDPS Act, including Note 1 of the Schedule, as a central stimulant. The prosecution emphasizes the commercial quantity and the petitioner’s serious criminal antecedents in instances including POCSO cases and other offences, arguing that Section 37 will apply and bail should be denied to prevent misuse and ensure trial integrity. The state relies on chemical analysis and call data to show ongoing involvement and to challenge the applicant’s assertions.

Contentions of Respondents

The Respondents submit that the contraband constitutes a commercial quantity of a controlled substance (MDMA) and that the accused has serious criminal antecedents, including other cases, which justify stringent bail conditions under Section 37 of the NDPS Act. They argue that methamphetamine hydrochloride, though not explicitly listed in the Schedule, is covered under the NDPS regime as a salt form of methamphetamine and thus is an NDPS substance under Note 1 of the Schedule. The prosecution presents chemical analysis and investigation data indicating the petitioner’s association with others and his role in drug smuggling operations, including concealment tactics, and asserts that bail is unwarranted pending trial due to the gravity of the offence and the risk of reoffending. They rely on established bail principles from relevant case law (including the cited Madras High Court decision) to argue that the court should not grant bail where there is substantial material indicating guilt or risk during trial.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sadiq Basha v. State represented by the Intelligence Officer, Narcotic Control Bureau, Chennai	Crl. O.P No. 8070 of 2016	Mentioned Only	Cited to discuss bail standards and how material evidence should be weighed at bail stage; used as a reference rather than being binding on the present court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** **BAIL APPL. NO. 8183 OF 2022** ## **PETITIONER/ACCUSED NO.2:** SREEMON,AGED 26 YEARS S/O THANKAMANI,VELLUTHADATHU-VEEDU, KARUVANDHURUTHI-DESOM, KARUVANDHURUTHI-VILLAGE, KOZHIKODU-TALUK,KOZHIKODU-DIST., PIN - 673301 BY ADVS. BIJU ANTONY ALOOR K.P.PRASANTH T.S.KRISHNENDU ARCHANA SURESH JINSON JACOB EMIL SHAJU ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE ASST. EXCISE COMMISSIONER EXCISE CRIME BRANCH, ERNAKULAM DISTRICT., PIN - 682018 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ## **OTHER PRESENT:** SR.PP - C.K.SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No. 8183 of 2022 2** ## **VIJU ABRAHAM, J.** ## **------------------------** ## **B.A. No. 8183 of 2022** **-----------------------------Dated this the 1[st] day of November, 2022** ## **ORDER** This is an application for regular bail. 2. The petitioner herein is accused No.2 in S.C No 378/2022 on the file pending before the Addl. District and Sessions Court at Ernakulam, who was arrested on 19.08.2021 in connection with Crime No. 36/2022 registered by Excise Range Office, Ernakulam for the offences punishable U/Sections 22(c), 25,27A and 29 of NDPS Act, 1985. 3. Petitioner submits that though the total contraband seized is 83.896 gms of MDMA, only 12.218 gms of MDMA was recovered from the possession of the petitioner. Petitioner also contended that the contraband was found to be methamphetamine hydrochloride and not MDMA as originally claimed by the prosecution. The specific case of the petitioner is that methamphetamine **B.A. No. 8183 of 2022 3** hydrochloride does not find a place in Annexure A3 notification and therefore it is neither a narcotic nor a psychotropic substance. Though the petitioner moved an application for bail before the Sessions Court, the same was rejected as per Annexure A2. 4. Learned Public Prosecutor submitted that a total quantity of 83.896 gms of MDMA was seized from the accused who were staying along with the petitioner in the 1st floor of Marhaba Apartment at Vazhakala,in Kakkanad and 12.218 gms of MDMA was recovered from the possession of the petitioner. The learned public prosecutor contended that the investigation reveal that the petitioner along with A1, A5, and A6 used to smuggle drugs from Chennai to Kerala. When the accused used to smuggle drugs to Kerala, they usually carry aggressive dogs with them in the vehicle and used to conceal the drugs in the dogs food packets, and they escaped from the inspection of law enforcement agencies. The specific case of the prosecution is that while smuggling the drug, the petitioner always kept a ## **B.A. No. 8183 of 2022 4** photo of himself in his mobile phone in a uniform similar to the military uniform which he received when he was an NCC cadet and used this to mislead the various enforcement agencies to evade the inspection of their vehicle in which they used to smuggle the drugs. On analysis of the call data details, it is revealed that the petitioner has close acquaintance with A1, A3, A4, A6 and A19. The petitioner is involved in Crime No. 203/2016 of Museum Police Station under Section 376 IPC and under the POCSO Act, Crime No. 653/2016 of Panniyankara Police Station under the KP Act, and also Crime No. 205/2018 of Feroke Police Station for offences punishable under the POCSO Act. Verification of the bank details also reveals that the petitioner has financial transactions in connection with the trade of the drug seized. 5. Considering the fact that a commercial quantity of contraband is involved and also taking into consideration the fact that the petitioner has serious criminal antecedents, provisions of Section ## **B.A. No. 8183 of 2022 5** 37 of the NDPS Act will definitely come into play. Regarding the contention of the petitioner that the contraband seized is methamphetamine hydrochloride which is not included in the Schedule and therefore the offence against the petitioner will not lie, learned Public Prosecutor would submit that methamphetamine hydrochloride is the hydrochloride salt form of methamphetamine and the same will come within Note 1 of the Schedule. Learned Public prosecutor further submitted that Annexure 1 chemical analysis report also states that methamphetamine hydrochloride is a central stimulant and will come under the purview of the NDPS Act. 6. The Madras High Court in _**Sadiq Basha v.**_ _**State represented by the Intelligence Officer,**_ _**Narcotic Control Bureau, Chennai**_ , i.e. Crl. O.P. No. 8070 of 2016 in which an identical situation was considered. Paragraphs 17 and 18 of the said judgment read as follows: “ _17. The submission of the learned Senior_ ## **B.A. No. 8183 of 2022 6** _counsel for the petitioner is three fold namely (i) the contraband allegedly seized from the petitioner viz., Methamphetamine Hydrochloride is not included in the schedule to Section 2 (xxiii) of the Act (ii) the chemical analysis report is silent about the quantitative assessment made with reference to the neutral material contained in the drug allegedly seized from the petitioner and (iii) the petitioner is arrayed as A-2, he was not in possession of the contraband at the time of seizure and that he is undergoing incarceration for a period of more than a year._ _18. The main contention of the learned Senior counsel for the petitioner is that the list of psychotropic substances appended in the Schedule to Section 2 (xxiii) of the Act does not contain the name of the drug allegedly seized from the petitioner and what is indicated in serial No.90 thereof is only Metamfetamine Racemate and it is not indicated in the chemical analysis report in this case. In order to repudiate this submission, the learned Special Public Prosecutor has taken me to the table appended to Section 2 (xxiii) of the Act, in serial No.239 it is stated that "Any mixture or preparation that of with or without a neutral material, of any of the above drugs". By relying on this note in Serial No.239, it is submitted that any content or substance added to a mixture would form a psychotropic or narcotic substance. The above_ ## **B.A. No. 8183 of 2022 7** _submissions made by the learned Senior counsel for the petitioner and the learned Special Public Prosecutor are matters to be decided in the course of trial and in this petition, which is filed by the petitioner for bail, it has no significance. For granting or rejecting bail, this Court is required to arrive at a conclusion that there is no material made available by the prosecution to show that there are reasonable grounds exist for believing that the accused is guilty of such offence and that he is not likely to commit any offence while on bail. In this case, there are materials made available on record by the prosecution in the form of confession statement of the petitioner, recovery mahazar, chemical analysis report etc.,but they are disputed by the petitioner. While so, it is for the trial court to decide the correctness or otherwise of the material evidence produced by the petitioner and it is not for this Court to consider those evidence for grant of bail._ ” 7. I have earlier considered the bail applications of accused nos. 7, 8, 9, 12, 14, 15 and 21 in BA no. 8569/2021 and connected cases and rejected the bail applications as per order dated 22.09.2022. Considering the entire aspects including the ## **B.A. No. 8183 of 2022 8** fact that the contraband involved is of a commercial quantity and that the petitioner is involved in other serious criminal cases, the rigor of Section 37 of the Act will definitely come into play. The petitioner could not substantiate by cogent reasons that the twin conditions in Section 37 of the Act are satisfied so as to grant bail. It is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits during the trial. The bail application is accordingly dismissed. Sd/- **VIJU ABRAHAM, JUDGE** pm