Sudheer v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933 ## **BA.No. 8933 of 2011** CRIME NO.524 OF 2011 OF ERNAKULAM TOWN NORTH POLICE STATION SC.319/2011 OF ADDL.SESSIONS COURT (ADHOC)-II, ERNAKULAM ## **PETITIONER: ACCUSED:** SUDHEER, AGED 34 YEARS, S/O.MUSTAFA, VALIYAKULATHINGAL PARAMBU HOUSE KARUKAPPALLY, DESHABHIMANI, ERNAKULAM VILLAGE. BY ADVS.SRI.PRAKASH KESAVAN SRI.P.P.GENSON ## **COMPLAINANT: COMPLAINANT** : STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07-12-2011, THE COURT ON 01/02/2012 PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------Bail Appl. NO. 8933 of 2011 -----------------------------------------------------Dated this the 1[st] day of February, 2012** ## **O R D E R** The following question of law is involved in this Bail Application: In a case involving an offence under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, can bail be refused on the ground that the accused is involved in other cases for the offence under Section 22 (a) of the Act and for offences under the Indian Penal Code? 2. The Petitioner is the accused in Sessions Case No.319 of 2011 on the file of the Court of the Additional Sessions Judge (Adhoc II), Ernakulam. The offence alleged against the accused is under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’). The Petitioner is in judicial custody since 11-3-2011. He seeks bail under Section 439 of the Code of Criminal Procedure. 3. The prosecution case is the following: On 11-3-2011, at Bail Appl. NO.8933 of 2011 :: 2 :: about 5 P.M., the Sub Inspector of Police, Ernakulam Town North Police Station found the petitioner/accused standing near a bike and two or three persons standing near him. On seeing the police, the other persons ran away. The petitioner/accused tried to escape on the bike. He was intercepted by the police. On search of his body, 10 ampules of diazepam were seized. 97 amplules of Lupegesic were found in a kit hung on the handle of the bike. The accused was arrested. The Bail Applications filed by the petitioner were rejected by the Additional Sessions Judge. 4. The learned counsel for the petitioner submitted that the petitioner is entitled to be released on bail on the following grounds: (1) The Chemical Analysis Report was not filed along with the charge sheet filed on 23-4-2011. Therefore, it is not valid charge at all. (2) Body search of the accused was not conducted by the detecting officer but it was done by the Gazetted Officer (Circle Inspector of Excise, Ernakulam). Therefore the search and seizure were illegal. (3) No contraband was seized from the accused. It was found on the bike. There is no evidence to show that the bike belongs to the petitioner. Bail Appl. NO.8933 of 2011 :: 3 :: 5. The learned Public Prosecutor opposed the Bail Application. He submitted that commercial quantity of psychotropic substances was seized from the petitioner. The Psychotropic substances were seized from the person of the petitioner and from the bike used by him. He tried to escape on that bike. It is not necessary that the bike should be owned by the accused in order to attract the offence. The petitioner is involved in six criminal cases including three cases under the NDPS Act. The ingredients of Section 37(1)(b)(ii) of the NDPS Act are not satisfied in the case and therefore the petitioner is not entitled to be released on bail. 6. In answer, the learned counsel for the petitioner submitted that in order to attract the second limb of sub clause (ii) of clause (b) of sub-section (1) of Section 37 of the NDPS Act, it is not sufficient to show that the accused is involved in any offence. It is necessary to show that he is involved in an offence under the NDPS Act and that too an offence involving commercial quantity. The satisfaction of the court should be regarding the likelihood of the accused committing similar offences and not any offence. Bail Appl. NO.8933 of 2011 :: 4 :: 7. In **Kamalaksha v. S.I. of Police : 2007 (1) KLT 299** , a learned Single Judge of this Court (Justice V.Ramkumar) held that it is not necessary to produce the Chemical Analysis Report along with the final report in a case under the Kerala Abkari Act. It was held: “Considering the alarmingly escalating offences relating to narcotic drugs and other intoxicating substances and limited number of Government Chemical Examiners’ Laboratories in the State, it may be difficult for such laboratories to promptly cater to the needs of the investigating agencies. But the consequential delay in getting the certificates of analysis need not deter the investigating officers from submitting the final reports before the courts concerned.” “The report under S. 173 (2) Cr.P.C. is nothing more than an opinion of the police officer that as far as he is concerned, he has been able to collect evidence during his investigation about the commission of the offence by the accused who is placed on trial. If the police report or charge sheet contains necessary details so as to enable the Magistrate to take cognizance of the offence and proceed further, it cannot be said that there is failure of compliance of S. 173 (5) Cr.P.C. just Bail Appl. NO.8933 of 2011 **==> picture [37 x 11] intentionally omitted <==** because the scientific reports have not been produced along with the charge sheet filed by the police officer. In such a case it cannot be said that the charge sheet so produced is incomplete.” I am in respectful agreement with the view taken by Justice V.Ramkumar. The principles of law laid down in _**Kamalaksha's**_ case would apply to cases under the NDPS Act also. In these circumstances, I reject the first ground raised by the learned counsel for the petitioner. 8. As regards the second point raised by the learned counsel, it is clear from a perusal of the First Information Report that the body search of the accused was conducted by the detecting officer himself and not by the Gazetted Officer in whose presence the search was conducted. The contention put forward by the petitioner in this regard is without any substance. 9. Equally unsustainable is the third point raised by the petitioner that no contraband was seized from him. On a search of his body, 10 ampules of Diazepam kept concealed in his dhothi were Bail Appl. NO.8933 of 2011 :: 6 :: seized. 97 ampules of Lupegesic were found kept in the kit hung on the handle of a bike which was used by the accused. He tried to escape on that bike. In order to attract the offence, it is not necessary that the accused should be the owner of the bike. It is sufficient if the accused possesses the psychotropic substance, in order to attract Section 22 of the NDPS Act. Possession need not be by keeping the psychotropic substance at any part of his body. Keeping possession of the article at any place by the accused is enough. Possession is a conscious act. The place where the psychotropic substance is kept by the accused is not quite relevant; but the conscious act of the accused of having kept the article there is the relevant criterion. Even if the bike belongs to some other person but if the accused possesses and uses the bike and he keeps the psychotropic substance on the bike, it would be sufficient to attract Section 22 of the NDPS Act. 10. Now, I shall deal with the last point raised by the learned counsel for the petitioner. Section 37 of the NDPS Act reads as follows: ## “ **37. Offences to be congnizable and nonbailable.-** Bail Appl. NO.8933 of 2011 :: 7 :: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- - (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27 A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.” 11. Under sub clause (ii) of Section 37 (1)(b)of the NDPS Act, one of the ingredients is that the court must be satisfied that the accused is not likely to commit any offence while on bail. Criminal antecedents of the accused is also relevant while arriving at Bail Appl. NO.8933 of 2011 :: 8 :: the satisfaction. If the accused is involved in other cases under the NDPS Act, it is certainly a relevant factor while arriving at the satisfaction by the court. The question is whether it is necessary to show that the accused was involved in cases under the NDPS Act for possessing commercial quantity of psychotropic substance in order to deny bail to him in the present case where commercial quantity of psychotropic substance is involved. In other words, is it necessary to show that the accused was involved in similar cases under the NDPS Act? I am of the view that it is not necessary at all. The expression in sub clause (ii) is “he is not likely to commit any offence while on bail”. “Any offence” includes any offence under any penal statute. It need not be an offence under the NDPS Act. If the court is satisfied that the accused is likely to commit any offence while on bail, that is enough to deny bail to him in a case of the nature mentioned in Section 37(1) (b) of the NDPS Act. It is not necessary that the previous case must be a case involving commercial quantity of psychotropic substance. Even if the previous case is a case involving contravention in relation to psychotropic substance of small quantity or in relation to a narcotic drug or in relation to an offence under the Indian Penal Code, then also the Court can refuse to arrive at the satisfaction that the accused is not Bail Appl. NO.8933 of 2011 :: 9 :: likely to commit any offence while on bail. The object of the rigor under Section 37 of the NDPS Act is to ensure that an accused against whom an offence of the nature mentioned therein is alleged should not indulge in other offences while on bail causing menace to the society. The law makers were aware that persons involved in offences under the NDPS Act are also likely to involve in similar or other offences under the Act or offences under any other penal statute. Such persons should not be let loose to the detriment of the general public. 12. For the aforesaid reasons, I am not inclined to grant bail to the Petitioner. It is made clear that the findings and observations in this Order are intended only for dealing with the Bail Application. ## Accordingly, the Bail Application is dismissed. **(K.T.SANKARAN) Judge** ahz/