IMPORTANT POINT
Bail – When prosecution alleges possession of commercial quantity of contraband, rider under Section 37 of NDPS Act would apply.

ORDER (COMMON)

The petitioner in B.A.No.8027 of 2023, who is the 2nd accused in Crime No.612/2023 of Ernakulam Town North Police Station, now pending as S.C.No.650/2023 before the First Additional District and Sessions Court, Ernakulam, has approached this Court for the first time seeking regular bail. The petitioner in B.A.No.9090 of 2023, who is the 4th accused in the above case, seeks regular bail for the fourth time.

2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor.

3. I have perused the relevant records.

4. The prosecution allegation is that, based on a secret information received on 29.03.2023 to the effect that, four persons engaged in possession of MDMA in Room No.317 of Sidra Pristine Hotel, SRM Road, Ernakulam, the police party conducted search at 16.20 hours on 30.03.2023 and on search, 294 grams of MDMA was seized in the presence of accused Nos.1 to 4. Thereafter, they were arrested and crime, alleging commission of offence punishable under Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter), was registered.

5. The learned counsel for the petitioners would submit that the petitioners are innocent and they were nabbed without any justification. The learned counsel would submit that the 2nd and 3rd accused are neighbourhood friends of the 4th accused and the 4th accused is a student, studying in Munnar Catering College. It is also submitted that, nothing recovered from the conscious possession of the 4th accused. The learned counsel for the petitioners argued that even though after investigation, final report has been filed, as per the final report also, the allegations against the 2nd and 4th accused are not established and the final report as well as the seizure cum recovery mahazar would go to show that the 1st accused is the person, who dealt with the contraband, which was recovered from Sidra Pristine Hotel, SRM Road, Ernakulam, when the police party conducted search. It is argued further that since the role of the 2nd and 4th accused could not be established as per the final report, they are liable to be released on bail.

6. The learned Public Prosecutor submitted that the specific allegation of the prosecution itself is that accused 1 to 4, after sharing common intention, as a joint venture, transported 294 grams of MDMA in a car bearing Registration No.KL 62B 3022 and kept the same in Sidra Pristine Hotel, for the purpose of sale and they were intercepted by the police jointly along with the contraband. Since the prosecution allegation is specific on the point that accused 1 to 4 committed the above offences, the argument at the instance of the learned counsel for the petitioners that the petitioners are innocent, as per the final report, is absolutely meritless. It is also submitted that there is no reason to read the complicity of the petitioners/2nd and 4th accused, in segregation, to hold that they are innocent to dilute the rigor under Section 37 of the NDPS Act.

7. The second bail application of the petitioner, viz. B.A.No.9090/2023, was dismissed as observed in paragraphs 8 to 16 of B.A.No.3659/2023 as under:—

“8. Available materials do not suggest anything to hold that the petitioner is innocent, in a case involving red-handed recovery of commercial quantity of contraband from a Hotel room, on the basis of a secret information. In such case, the rigor under Section 37 of the NDPS Act, would squarely apply.

9. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under:—

37. Offences to be cognizable and non-bailable.—(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 o