VASUDEVAN v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940** **Bail Appl..No. 3650 of 2018 CRIME NO. 42/2018 OF AREACODE POLICE STATION , MALAPPURAM** ## **PETITIONER(S)/4TH ACCUSED** **VASUDEVAN, S/O.RATNAM, AGED 53 YEARS, DOOR NO.14C/19, 2ND STREET, VIMCO NAGAR, ENNUR P.O., THIRUVALLUR DISTRICT, CHENNAI, TAMILNADU-600120.** **BY ADVS.SRI.BIJU ABRAHAM SRI.E.V.LIJEESH** ## **RESPONDENT(S)/RESPONDENT:** **THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25-06-2018 ALONG WITH B.A.NO.3751 OF 2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **IAP** ## **RAJA VIJAYARAGHAVAN V, J. -------------------------------------B.A. Nos.3650 of 2018 & 3751 of 2018 --------------------------------------** Dated this the 25[th] day of June, 2018 ## **ORDER** These applications are filed under Section 439 of the Code of Criminal Procedure. 2. The applicant in Bail Application No.3751 of 2018 is the 1[st] accused and the applicant in Bail Application No.3650 of 2018 is the 4[th] accused in Crime No.42 of 2018 of the Areakode police station, registered inter alia under Sections 22(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On the basis of secret information that the applicants were dealing with contraband, they were intercepted by the Sub Inspector of Police, Areacode Police Station, at about 10.30 p.m., on 18.2.2018, while they were standing together near to the comfort station attached to the Areacode Grama Panchayat bus stand. After complying with all statutory formalities a search was conducted in the presence of a Gazetted Officer. B.A.Nos.3650 & 3751 of 2018 2 From the possession of the 1[st] accused 350 gms of Ketamine was seized. Search of the body of the rest of the accused resulted in the detection of 100 gms each of the same drug. They were arrested. The drugs were sampled, sealed and labelled. The Crime was initially registered under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. In the course of investigation, when it was revealed that the limit for categorizing Ketamine as commercial quantity is 500gms and as according to the prosecution, the accused were all parties to the criminal conspiracy to commit offence punishable under Chapter IV of the NDPS Act, Section 22(b) was deleted and in its place Section 22(c) r/w. Section 29 of the NDPS Act were added. 4. The learned counsel appearing for the 1[st] accused submitted that he is innocent. According to the learned counsel, the 1[st] accused was arrested on 18.2.2018 and he has been denied bail on the ground that the quantity seized is commercial in nature. It is urged that the prosecution had no such case at the inception. The accused Nos. 2 and 5 were granted statutory bail by the Court of Session. There is no reason why the applicant should be denied of the same benefit B.A.Nos.3650 & 3751 of 2018 3 is the submission. The learned counsel would point out that in the objection filed by the learned Public Prosecutor opposing the prayer for bail, it has been stated that it was the 1[st] accused who had brought Ketamine from Chennai for illegal sale and had given 100gms each to the rest of the accused for the purpose of sale. According to the learned counsel, in the objection submitted by the learned Public Prosecutor in B.A.No.3650 of 2018, the version is different. In the said objection, it is stated that it was the 4[th] accused who had brought Ketamine from Chennai and had entrusted the same with the rest of the accused. According to the learned counsel, the prosecution has no consistent version and this would show that the incorporation of Section 29 of the Act is clearly without basis. 5. The learned counsel appearing for the 4[th] accused submitted that what has been seized from his possession is just 100 gms of Ketamine which would come within the category of intermediate quantity. Without any materials Section 22(c) r/w. Section 29 of the NDPS Act has been incorporated. This is for denying bail to the applicant is the submission. According to the learned counsel, the accused Nos. 2 and 5, who are B.A.Nos.3650 & 3751 of 2018 4 similarly placed as the applicant herein have been granted bail and in that view of the matter, it is prayed that he also be granted bail. 6. The learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that all statutory formalities were complied with and steps have also been taken under Section 52A of the NDPS Act. According to the learned Public Prosecutor, statutory bail was granted to accused Nos. 2 and 5 without noting the fact that the quantity seized was commercial in nature. This fact has been acknowledged by the Court of Session in Annexure-A2 order. It is further submitted that steps are being taken to cancel the bail which was granted ignoring Section 37 of the NDPS Act. 7. The learned Public Prosecutor would further urge that it is futile to contend that Section 29 of the NDPS Act, 1985 would not be attracted in the instant case. The applicants are all persons from Tamil Nadu and they were found together. The total quantity of Ketamine seized from the accused is 750 gms. As per the statute, 500 gms and above of Ketamine would satisfy the criteria of commercial quantity. In that view of ## B.A.Nos.3650 & 3751 of 2018 5 the matter, the parameters laid down in Section 37 of the NDPS Act, 1985 will have to be satisfied as the quantity seized is commercial in nature. Highlighting the deleterious effects and deadly impact of the substance, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities. The learned Public Prosecutor referred to the decisions of the Apex Court in **Union of India (UOI)** v. **Shri Shiv Shanker Kesari** [(2007) 7 SCC 798], **Union of India** v. **Ram Samujh and Another** [(1999) 9 SCC 429] and **Mujeeb v. State of Kerala** [2011 (3) KHC 748] to support his contentions. 8. I have considered the submissions advanced and have gone through the materials on record. 9. It was on 18.2.2018 that detection was made by the authorised officer. The quantity seized is 750 gms of Ketamine. There cannot be any doubt that the total quantity seized would satisfy the criteria of commercial quantity. The accused were found standing together and it appears form the case diary that the contraband was handed over by the 1[st] accused to accused Nos. 2 to 5 for the purpose of distribution. The minor B.A.Nos.3650 & 3751 of 2018 6 discrepancy in the objection filed by the learned Public Prosecutor, according to me, will not advance the case of the applicants. The specific case of the prosecution is that the accused were party to a criminal conspiracy to commit an offence punishable under Section 22(c) of the Act. 10. The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case where 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) of the Act is “reasonable grounds” which expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is 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 is not guilty of the offence charged. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there B.A.Nos.3650 & 3751 of 2018 7 are reasonable grounds for believing that the accused is 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 is not likely to commit any offence and there should also exist some materials to come to such conclusion. 11. 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 applicants have 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 they are not guilty of the offence charged. These applications will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** IAP //True Copy\\ P.A to Judge