IMPORTANT POINTS
while considering an application for bail in a case of instant nature, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications both at the national level and also at the international level.

ORDER :

This application is filed under Section 439 of the Cr.P.C.

2. The applicant herein is the 2nd accused in Crime No.33 of 2018 registered at the Excise Range Office, Thrissur registered under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. On 17.09.2018 at 12.30 pm, the applicant along with the 1st accused were allegedly found having in their possession Hashish by the Excise Inspector, Excise Range Thrissur. They were restrained and were informed of their right to be searched in the presence of a Gazetted officer or a Magistrate. As requested by them, the Assistant Excise Commissioner, Thrissur, was summoned to the spot. In the bag found in the possession of the 1st accused, 7 packets of hashish weighing 3.441 kg was detected. From the bag found in the possession of the applicant 519 grams of hashish was seized. The contraband were seized and the accused were arrested. Investigation was taken over by the Assistant Excise Commissioner, Thrissur, who completed the same and submitted the complaint before court. The case is now pending as SC No.145 of 2019 on the file of the Additional Sessions Court, Thrissur.

4. Sri.Dheeraj Rajan C., the learned counsel appearing for the applicant, submitted that the applicant has been undergoing incarceration from 17.9.2018 onwards. The earlier application filed by him was dismissed by this Court by Annexure-A5 order. It is further contended that what was allegedly seized from the possession of the applicant is much below the quantity fixed as commercial in nature. He points out that the investigating agency has not included Section 29 of the NDPS Act, 1985 while filing the complaint and hence it cannot now be argued that the applicant had abetted the commission of the offence or that he was a party to the conspiracy along with the 1st accused, from whose possession, commercial quantity of narcotics were seized. Reliance is placed on Muthukumar and Others v Station House Officer [2008 (2) KHC 592] and it was argued that if the accused was found in possession of a quantity less than commercial in nature, the rigor under Section 37 will not apply in full force. It is then contended that gross prejudice has been caused in the instant case as the Gazetted officer who was summoned to the spot to witness the search has later investigated the crime and had submitted the complaint before court. Relying on the judgment of the Apex Court in Mohanlal v. State of Punjab [2018 (3) KLT 852] it was argued that the constitutional guarantee under Article 21 of the Constitution of India would be a hollow promise if the gazetted officer himself, who was summoned to witness the search, later assumes the role of an investigating officer, as it would be in his foremost interest to ensure that the accused is convicted. According to the learned counsel, the applicant herein was an employee in a steel factory at Palakkad and he had no occasion to come to Thrissur or carry out the transaction of narcotic drugs.

5. Sri. Suman Chakravarthy, the learned Senior Public Prosecutor has strenuously opposed the prayer. He would point that five times the quantity fixed as commercial was seized from the possession of the accused. They were caught red handed while they were dealing with narcotics. It is contended that unless the applicant satisfies the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the applicant cannot be released on bail. He referred to the decisions of the Apex Court in Union of India (UOI) v. Shri Shiv Shanker Kesari [(2007) 7 SCC 798] and Union of India v. Ram Samujh and Another [(1999) 9 SCC 429], State of Kerala v. Rajesh [Crl.A.No.154-157 of 2020] to support his contentions. Referring to the decision of the Apex Court in SUPDT., Narcotics Control B