1. This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.3 in Crime No.212 of 2011 of Perumpadappu Police Station, Malappuram District.

2. The offences alleged against the petitioner are under Sections 21 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’). The case was originally registered under Section 22(c) of the NDPS Act and Section 120B read with Section 34 of the Indian Penal Code. Later, a report was filed and the sections of offence were altered to Sections 21 (c) and 29 of the NDPS Act.

3. The prosecution case is the following: On 28.6.2011 at about 4 PM, the Sub Inspector of Police, Perumpadappu Police Station got secret information that some persons belonging to Mannarkkad would arrive near Taj Theatre, Palappetty, to hand over brown sugar to one Tharayil Mujeeb of Palappetty. The police party went to the spot. They found four persons near the Taj Theatre. On seeing the police party, one among the four persons escaped from the place in an Alto car, bearing registration No. KL5-7075. The other three persons were apprehended. They were: (1) Subair, (2) Sheriff (brother of Subair) and (3) Mujeeb. The police got information that the person who escaped from the scene of occurrence was Harris. He was made accused No. 4. On search of the body of accused Nos. 1 to 3, a quality of 900 grams of brown sugar was seized from the possession of accused No. 1 and three small packets containing brown sugar were seized from the possession of accused No. 2. There was no contraband in the possession of Mujeeb, accused No. 3.

4. According to the prosecution, the brown sugar has a market value of Rupees Fifty lakhs. On the packets containing brown sugar, it was printed that the same was “Afgan product”. According to the prosecution, accused No. 1 belongs to an extremist organization called NDF and that the brown sugar was imported into India for facilitating terrorist activities in the coastal area of the State of Kerala. It is also submitted that Special Branch and intelligence Bureau also are looking into the matter as to whether the accused persons have any connection with terrorist groups working abroad. Accused No. 4 Harris is yet to be arrested.

5. The petitioner moved for bail before the Special Judge (NDPS Act cases), Vadakara. That Bail Application was dismissed by the order dated 27.7.2011.

6. Sri.Nirmal.S., the learned counsel appearing for the petitioner submitted that no narcotic drug or psychotropic substance was seized from the possession of the petitioner and therefore, there is no justification for the continued detention of the petitioner. It is submitted that the rigor of Section 37(1)(b)(ii) of the NDPS Act would not apply, so long as no contraband was seized from the possession of the petitioner.

7. Sri.V.Tekchand, the learned Public Prosecutor, vehemently opposed the Bail Application. He submitted that the fact that brown sugar was not found in the possession of one among the accused is not relevant at all, particularly when Section 29 of the NDPS Act applies. Learned Public Prosecutor also submitted that the parameters of Section 37(1)(b)(ii) of the NDPS Act are not satisfied in the case and therefore, the petitioner is not entitled to the grant of bail.

8. As stated earlier, originally the offence alleged was under Section 120B read with Section 34 of the Indian Penal Code and Section 22(c) of the NDPS Act. It would appear that the investing officer was under the misapprehension that brown sugar is a psychotropic substance. Later, the Section of offence was corrected. So also Section 120B of the Indian Penal Code need not be invoked, since Section 29 of the NDPS Act covers the criminal conspiracy to commit an offence punishable under Chapter IV of the NDPS Act. Even after altering the Section of offence, prima facie, it would appear that all the relevant Sections have not been inclu