Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 BAIL APPL. NO. 4689 OF 2023 NDPS CRIME NO.6/2023 OF KALIKAVU EXCISE RANGE OFFICE, MALAPPURAM PETITIONER/S: RATHEESH M R AGED 32 YEARS S/O RAVEENDRAN, MANAPPURATHU HOUSE, THAMBURATTIKALLU, MUNDELI P.O, POTHUKALLU VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN - 679334 BY ADVS. K.MOHAMMED RAFEEQ BIBIN MATHEW P.M.MATHEW AMARNATH R LAL SANALDEV E.P. VISHNUMAYA ANANDAN FIDA P. RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE EXCISE COMMISSIONER EXCISE RANGE KALIKAVU, MALAPPURAM DISTRICT., PIN - BY ADV SEETHA S. PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21.07.2023, THE COURT ON 31.07.2023 DELIVERED THE FOLLOWING: B.A.No.4689 of 2023 2
ORDER
This is an application for regular bail filed under section 439 of the Code of Criminal Procedure (Cr.P.C).
2. The petitioner is the 2nd accused in Crime
No.6/2023 of Kalikavu Excise Range Office, Malappuram. The offences alleged against the petitioner and the other accused are under sections 22(c), 8(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
3. The prosecution case is that, on 31.3.2023
at about 7.50 a.m., the 1st accused was found in possession of 61.544 grams of MDMA in a car bearing registration No.KL-10 BA 7253 and the 2 nd accused were found to have purchased 1.045 grams of MDMA from the 1st accused and kept the same in his car bearing registration No.KL17-M-1285. The petitioner and the 1st accused were arrested on the same day,
B.A.No.4689 of 2023 3 and since then, the petitioner is under judicial detention. This application for regular bail was submitted in such circumstances.
4. Heard Sri.Mohammed Rafeeq, the learned counsel for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor for the State.
5. One of the crucial contentions raised by the learned counsel for the petitioner is that, as far
as the petitioner is concerned, the quantity recovered from his possession was 1.045 grams of MDMA which later turned out to be Methamphetamine in the chemical analysis report. Since the quantity allegedly recovered from the petitioner's possession is not commercial, the offence under section 22(c) would not be as attracted as against him. The recovery of the contraband article in commercial quantity was affected from the undergarments of the 1st accused, that too while he was sitting in his car. The petitioner's specific case is that, under
B.A.No.4689 of 2023 4 no circumstances he can be held responsible for the commercial quantity recovered from the 1st accused. Even according to the prosecution, the petitioner had only purchased the contraband article from the 1st accused, which is not a commercial quantity. Therefore, the rigour under section 37 of the Act cannot be made applicable to the petitioner, as there is no recovery of commercial quantity from him. The petitioner has been in judicial custody from 31.3.2023 onwards, so he seeks bail. He also places reliance upon the decision rendered by this Court in Mushaque Ahammed @ Muthu and Another v. Sub Inspector of Police[ILR 2020(3) Ker.307] and the
order dated 20.06.2022 in B.A.No.2573/2022 of this
Court.
6. The learned Public Prosecutor vehemently opposes the said application by pointing out that, merely because of the reason that the recovery affected from the petitioner was that of a quantity
B.A.No.4689 of 2023 5 which is not commercial, he cannot be exonerated from the offence under section 22(c) of the Act. This is mainly because, at the relevant time, the petitioner was found purchasing the said contraband from the 1st accused, who was in possession of the contraband article in commercial quantity. Therefore, there was a common desire to procure the contraband article between the parties, and hence both the accused have to be held responsible for the sale and possession of the contraband article in commercial quantity. Reliance was placed on the observations made by the Hon'ble Supreme Court in Union of India through Narcotics Control Bureau, Lucknow v. Md.Nawaz Khan [(2021)10 SCC 100] and the decision rendered by this Court in Mujeeb v. State of Kerala [2011(3) KHC 748].
7. I have carefully gone through the records. The seizure was affected immediately after the petitioner purchased the contraband article from the
B.A.No.4689 of 2023 6 1st accused, who was sitting in a car bearing registration No.KL10 BA 7253. Thereafter, the petitioner entered his car bearing registration
No.KL-17 M 1285, and the recovery was affected at that point of time. Even according to the prosecution, the petitioner went there to purchase the contraband article and was caught immediately after such purchase. The quantity allegedly purchased by the petitioner/2nd accused is only 1.045 of Methamphetamine, which is not commercial. Apart from the said purchase, from the materials placed on record, there is no other evidence indicating the
common desire to procure the contraband article between the parties. As rightly pointed out by the learned counsel for the petitioner, the order passed by this Court in B.A.No.2573/2022, which was relied on by the petitioner, was a case in which bail was granted to a person similarly situated. Even though the learned Public Prosecutor places reliance upon
B.A.No.4689 of 2023 7 the observations made by Mujeeb's case (supra), I am of the view that the factual circumstances in that case were different. It is true that, in the said decision, the following observations were made by this Court in paragraph 12, which reads as follows:
“S.21 of the NDPS Act provides that whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable in the manner provided in clauses (a) to (c) therein. Manufacture, possession, sale, purchase, transportation, importing inter-State, exporting inter-State and use of any manufactured drug or any preparation containing any manufactured drug constitutes the offence under S.21. To attract S.21, it is not always necessary that a person should be found to be in possession of the drug. If any one of the ingredients mentioned in S.21 is satisfied, the offence would be complete. In the present case, the allegation is that the petitioner came to the place of incident to purchase the drug. The sellers of the drug also were present there. It is also alleged that a conspiracy took place among the accused at a saw mill at Valancheri for sale and purchase of the brown sugar and sample packets were handed over to the purchaser. The investigation also revealed that the accused met at the place of occurrence on 28.06.2011 as per the programme scheduled. Prima facie, these allegations would attract the expressions ‘sells’ and ‘purchases’ occurring in S.21 of the Act. Therefore, I reject the contention of the learned counsel for the petitioner that the petitioner cannot be said to have committed the offence under S.21 of the Act, since no drug was seized from his possession.”
Thus, it can be seen that there was an observation
B.A.No.4689 of 2023 8 in the said decision to the effect that even if no contraband article was recovered from the possession of the accused, he could be held responsible for the offence under section 21 of the NDPS Act. That was a case where the petitioner therein came to purchase the contraband article, and the arrest and recovery were affected at that point. The petitioner therein, even though he came there to purchase the contraband
article, no purchase was affected while he was captured. The facts and circumstances of that case differ from this case because there is no idea about
the quantity intended to be purchased by the petitioner therein. Besides the same, in Mujeeb’s case (Supra), there was a specific case for the prosecution that conspiracy for the same took place among the accused at a sawmill at Valancheri. This is also a distinguishing factor which prompts this Court to take a different view in the facts and circumstances of the case.
B.A.No.4689 of 2023 9
8. In this case, even according to the
prosecution, he came there to purchase thecontraband article. He purchased a definite quantity of 1.045 grams of Methamphetamine, and he was about to make payments towards the value of the quantity of the contraband article he purchased, through Google Pay. Thus, it is evident that the status and role of the 1st accused and that of the 2 nd accused, the petitioner herein, are different. Both parties were found in separate cars, and the recovery of the contraband article in commercial quantity was affected from the 1st accused. It was found to be concealed in his undergarments while he was sitting in the car in which the 1st accused came, whereas the petitioner was found in yet another vehicle, and the recovery was affected from the said car. Apart from
the said incident, no other materials are forthcoming indicating a conspiracy between the parties to procure contraband articles. In the B.A.No.4689 of 2023 10
decision of the Hon'ble Supreme Court in Md.Nawaz Khan's case (supra) also, the observations were to
the effect that the absence of possession of contraband on the person of the accused does not absolve it of the level of scrutiny required under S.37(1)(b)(ii) of the NDPS Act. In this case, that question does not arise because the petitioner was found to be in possession of a definite quantity of the contraband article, which is not commercial. Therefore, in the peculiar facts and circumstances of the case, merely because, he purchased it from
the 1st accused, who was in possession of a contraband article in commercial quantity, he cannot be held responsible for the entire quantity recovered from both the accused together unless there are any other specific materials indicating that both the accused have conspired together and done something jointly for the purpose of either procuring, selling or purchasing the contraband B.A.No.4689 of 2023 11 article in commercial quantity. In this case, there is no material indicating the said aspects and the offence under section 29 is also not incorporated. Therefore, the case, which is the subject matter of this bail application, is factually different from the case dealt with in Md Nawaz Khan's case (supra).
9. As rightly pointed out by the learned
counsel for the petitioner, the petitioner has been under judicial detention since 31.3.2023 and the quantity recovered from his possession comes under the category of small quantity. Even though the offence under section 22(c) is incorporated, since a prima facie view is possible from the perusal of the materials that the petitioner/2nd accused may not be involved in the commission of the offence under the provisions of section 22(c) of the Act, one of the limbs of the dual condition under section 37 of the Act stands satisfied. When coming to the other limb,
B.A.No.4689 of 2023 12 it is to be noticed that the prosecution does not have a case that the petitioner was involved in any other cases. In such circumstances, I am of the view that there are ample materials to satisfy the dual condition contemplated under section 37 of the NDPS Act, and in such circumstances, taking note of the
period of detention, the petitioner had already undergone, I deem it appropriate to grant bail to the petitioner. However, it is clarified that the observations made by this Court were only for the purpose of deciding the question as to whether the petitioner is to be granted bail or not. It is further clarified that, under no circumstances, those observations would preclude the Investigating Agency from pursuing the matter under section 22(c) of the Act and collecting necessary materials for establishing the guilt of the accused. Accordingly, the petitioner is directed to be released on bail subject to the following B.A.No.4689 of 2023 13 conditions:
(i) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall fully cooperate with the investigation.
(iii) The petitioner shall appear before the Investigating Officer between 10.00 a.m. and 11.00 a.m. every Saturday until the filing of the final report.
(iv) The petitioner shall also appear before the Investigating Officer as and when required.
(v) The petitioner shall surrender his passport
before the jurisdictional court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court.
(vi) The petitioner shall not commit any offence of similar nature while on bail.
(vii) The petitioner shall not make any attempt to
contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. (viii) The petitioner shall not leave India without B.A.No.4689 of 2023 14 the permission of the trial Court. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk B.A.No.4689 of 2023 15 APPENDIX OF BAIL APPL. 4689/2023 PETITIONER ANNEXURES Annexure1 TRUE COPY OF THE BAIL ORDER DATED 22.05.2023 IN CRL. M.P NO. 1314/2023 ON THE FILE OF THE HONORABLE SPECIAL COURT FOR SC/ST (POA) ACT AND NDPS ACT CASES, MANJERI.