Sreeraj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** **Bail Appl..No.1718 OF 2021** **CRIME NO.12/2020 OF Nilambur Excise Range Office , Malappuram** ## **PETITIONER/ACCUSED:** **SREERAJ AGED 25 YEARS S.O. GANGADHARAN, NEDUVA, CHETTIPARY, PARAPPANANGADI, MALAPPURAM PIN-676319** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921)** ## **RESPONDENT/:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN-682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT.MAYA.M.N., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.1718 of 2021 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.1718 of 2021 ------------------------------Dated this the 8[th] day of March, 2021 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code. 2. Petitioner is the accused in Crime No.12/2020 of Nilambur Excise Range, Malappuram. This is the 3[rd] bail application filed by the petitioner under Section 439 Cr.P.C. 3. The short facts are like this: The above crime is registered against the petitioner and another alleging offences punishable under Sections 22(c), 20(b)(ii)(A), 25, 29 of Narcotics Drugs and Psychotropic Substances Act (NDPS Act). 4. The prosecution case is that the petitioner and other accused were found in possession of 56.64 grams of Ganja, 490 mg of LSD, 4.122 gms of MDMA crystals and 21.22 gms B.A.No.1718 of 2021 3 of MDMA pills on a motor bike at Anamari desom, Vazhikkadavu. The petitioner and other accused were arrested on 19.2.2020. The specific case of the prosecution is that the contraband seized from the petitioner is 56 gms of Ganja and 490 mg of LSD. 5. Heard the counsel for the petitioner and the learned Public Prosecutor. 6. The counsel for the petitioner submitted that as far as the Ganja alleged to be seized from the petitioner is concerned, it is small quantity. The contention raised by the counsel for the petitioner is that the LSD alleged to be seized from the petitioner is 490 mg. As per item No.133 of the table in the NDPS Act, the small quantity is 0.002 gms and the commercial quantity is 0.1 gm. In this case, the prosecution case is that the quantity seized from the petitioner is commercial quantity. The counsel submitted that the substance alleged to be seized from the petitioner is LSD stamp. The contention of the petitioner is that the weight of B.A.No.1718 of 2021 4 the contraband seized is taken together by the investigating officer. According to the counsel if the LSD alone is taken it will be below the small quantity. This is the sum and substance of the contention. The counsel also relied on the judgment of the Bombay High Court dated 7.12.2020 in Crl.Bail Application No.352 of 2020 where the substance was 10 pieces of papers containing LSD drops. 7. The learned Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that this Court may not consider this question while considering a bail application. The Public Prosecutor submitted that it is a matter of evidence. According to the Public Prosecutor, the definite case of the prosecution is that the petitioner was found in possession of commercial quantity of LSD. While considering this bail application, this point may not be decided and there can be a direction to the lower court to expedite the trial, is the submission of the Prosecutor. The Prosecutor also relied on the judgment of the Apex Court in **Hira Singh and Another v.** B.A.No.1718 of 2021 5 **Union of India and Another (2020 (2) KHC 551)** and the decision of the Karnataka High Court in **Registrar General, High Court Karnataka v. A.Shahid and Others (2016 KHC 3351** ). 8. The admitted case of the prosecution is that only a small quantity of ganja is seized from the possession of the petitioner. The only question to be decided is whether the petitioner was in possession of commercial quantity of LSD stamp. The point raised by the counsel for the petitioner is that the contraband article seized from the petitioner are really falling under the category of small quantity as the weight shown in the mahazar is 0.490 gms which includes the weight of stamp. According to the counsel, it does not conclusively establish that the contraband is above the intermediary quantity. The counsel also submitted that only a quantitative analysis can establish the real quantity of the contraband article. It is an admitted fact that final report is filed in this case before the court below and now the matter is pending B.A.No.1718 of 2021 6 trial. Admittedly, the petitioner is in custody from 19.2.2020 onwards. After going through the Judgment of the Bombay High Court, which I mentioned earlier, I think an arguable point is raised by the petitioner. The Bombay High Court considered the decision in **Hira Singh** (supra) also. The relevant portion of the judgment of the Bombay High Court is extracted hereunder: “8.I have perused the First Information Report, Recovery Panchanamas and Chemical Analyser's report. At the outset, it may be stated that the most common form of LSD is drop of LSD solution dried onto piece of paper or gelatin sheet, pieces of blotting papers which releases the drop when swallowed/consumed. In this case, drug was found in the form of drops dried onto 23 pieces of papers. Thus, process of drying LSD solution on a piece of paper, merely facilitates consumption of drug. This process neither changes the substance of the drug or its chemical composition. It is argued by the State, that since dried LSD drops of LSD solution, cannot be segregated or separated from the papers, it amounts to a 'mixutre' and therefore the weight of the paper is to be counted with 'LSD dots' for determining the quantity of drug which was more than 0.1 gram. The learned APP relies on Entry-239 of the Table and Footnote-(4) appended thereto of the NDPS Act. Entry No.239 and Footnote-(4) reads as under: 239. Any mixture or preparation that of with or without a neutral material, of any of the above drugs. Lesser of the Small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming B.A.No.1718 of 2021 7 ## part of the mixture. “4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.” 9. In my view, though after swallowing piece of paper, which causes release of drug but since that paper only carries drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither “preparation”, within the meaning of Section 2(xx), nor a “mixture” within the meaning of the NDPS Act. So far as the judgment of the Hon'ble Apex Court in the case of Hira Singh (supra) is concerned, issue therein was, whether mixture of narcotic drug or psychotropic substances with one or more neutral substances, quantity of neutral substances can be excluded while determining the small or commercial quantity of narcotic drug and psychotropic substances. However herein, the papers containing dried LSD drops of LSD solution, not being a mixture, and the paper being not a neutral substance, judgment of the Apex Court, has no application to the facts of this case. 9. The learned Judge, as it appears from the impugned order, has accounted weight of papers “while calculating and determining quantity of the LSD as a “commercial quantity”. In addition, while holding quantity of charas recovered from the applicant was 'commercial quantity', is equally incorrect because charas allegedly recovered from the applicant was 970 gms i.e.less than 1 kg. 10. Thus in consideration of the facts of the case, the findings of the learned Judge that weight of the paper containing dried LSD drops of LSD solution is required to be accounted while determining its quantity; whether small or otherwise is incorrect. In this case, the Chemical Analyser's report, shows quantity of LSD drops solution was 0.4128 milligrams, which was below 0.1 gm of commercial quantity. Therefore, rigors of Section 37 of the NDPS Act, are not applicable to the facts of this case. B.A.No.1718 of 2021 8 11. Herein, the applicant has no criminal antecedents. He is in custody since June, 2019. Therefore, in the facts of the case, the applicant is admitted to bail on following terms and conditions.:” 9. This is a bail application filed under Section 439 of the Cr.P.C I don't want to decide this question while considering this bail application because it will affect the case of the prosecution itself. I leave open this question to be decided by the trial court. But considering the entire facts and circumstances of the case and also considering the fact that the petitioner is in custody from 19.2.2020 onwards and the petitioner is aged only 19 at the time of the offence and also considering the fact that there is no criminal antecedents against the petitioner, I think this bail application can be allowed on stringent conditions. 10. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of B.A.No.1718 of 2021 9 this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 11. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 12. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. Petitioner shall be released on bail on - executing a bond for Rs.50,000/ (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the B.A.No.1718 of 2021 10 jurisdictional Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with B.A.No.1718 of 2021 11 respect to keeping of social distancing in the wake of Covid 19 pandemic. 6. If any of the above conditions are violated by the petitioner the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **P.V.KUNHIKRISHNAN, JUDGE** al/-+