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IN THE HIGH COURT OF KERALA AT ERNAKULAM
VIJU ABRAHAM, J.
Safar, S/o. Ashraf – Appellant
Versus
State Of Kerala – Respondent
B.A.Nos. 4347, 4357 of 2022
Decided on : 22-07-2022
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8(c), 22(c), 27A, 29, 37 – Judicial custody – Prosecution case, in brief, is that police has seized 158 grams of MDMA and 4.6 grams of 9 MDMA pills in a polythene bag kept hidden beneath steering wheel of a vehicle bearing registration from junction – It is alleged that petitioners were also travelling in above vehicle and thus committed abovesaid offences – Held, So, in view of judgment of Madras High Court in case (supra) and judgment of Supreme Court case (supra), contentions raised by petitioners that alleged contraband is not mentioned in Schedule and therefore, cannot be treated as a narcotic substance is only to be rejected – Admittedly, quantity of contraband seized is a commercial quantity and therefore rigor of Section 37 of NDPS Act will come into play and therefore enlargement of accused on bail can only be when twin conditions mentioned in Section 37 are satisfied – Applications dismissed.
Based on the provided legal document, here are the key points relevant to your query:
The applications for regular bail were considered in the context of a case involving the seizure of contraband, specifically MDMA and MDMA pills, in a vehicle. The case involved allegations under the NDPS Act, which classifies quantities of narcotic substances as either small or commercial. The seized quantity was deemed a commercial quantity, invoking the stringent conditions under Section 37 of the NDPS Act for bail (!) (!) .
The court emphasized that the contraband was found in a vehicle in the conscious possession of the accused, which shifts the burden onto the accused to prove that they were not in conscious possession at the time of seizure. The concept of possession includes physical possession, custody, or dominion, and can also include concealment with the intent to exercise control (!) (!) .
The legal presumption under the NDPS Act, particularly Section 35, shifts the burden onto the accused to prove that they did not have the requisite mental state of possession or knowledge of the contraband. The accused can discharge this burden by providing evidence that raises reasonable doubt about their possession or knowledge (!) (!) (!) .
The court noted that the mere absence of physical possession or the fact that the contraband was not seized directly from the accused does not necessarily exempt them from the presumption of possession, especially when they are found traveling in a vehicle with the contraband present. The evidence suggests that the accused were in conscious possession and involved in transporting the contraband (!) (!) .
Regarding the nature of the seized substance, the chemical analysis indicated the presence of methamphetamine hydrochloride. The court discussed that such substances, even if not explicitly listed in the Schedule, could fall under the definition of psychotropic substances if they are part of a mixture or preparation containing controlled substances. The interpretation of the Schedule and the inclusion of such substances depend on the chemical composition and the relevant legal provisions (!) (!) (!) .
The court clarified that the quantity of neutral substances mixed with narcotic drugs or psychotropic substances must be considered when determining whether the quantity qualifies as "small" or "commercial." This interpretation aligns with the legislative intent to prevent illicit drug trafficking and to effectively enforce the NDPS Act (!) (!) .
The conditions for granting bail in cases involving a commercial quantity are stringent. The court must be satisfied that the prosecution has no reasonable grounds to believe the accused is guilty, and the twin conditions of Section 37 must be satisfied—namely, that the prosecution is given an opportunity to oppose the bail and that there are reasonable grounds to believe the accused is not guilty. Since these conditions were not met, the bail applications were dismissed (!) (!) (!) .
The court also highlighted that the interpretation of the law should be aligned with its object and purpose, which is to combat drug trafficking and protect public health. The law should be applied strictly, especially in cases involving commercial quantities, to prevent abuse of the bail process (!) (!) .
In summary, the court dismissed the bail applications primarily because the accused were found in conscious possession of a commercial quantity of a controlled substance, and the conditions for bail under Section 37 of the NDPS Act were not satisfied. The legal principles concerning possession, presumptions, and the classification of substances under the NDPS Act were thoroughly discussed to support this decision.
ORDER :
These are applications for regular bail.
2. Petitioner in B.A.No.4357 of 2022 is the 2nd accused in Crime No.963 of 2021 of Nedumbassery Police Station registered alleging commission of offences punishable under Sections 8(c), 22(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). Petitioner in B.A.No.4347 of 2022 is the 3rd accused in the above crime.
3. The prosecution case, in brief, is that on 21.11.2021 at 15.30 hours police has seized 158 grams of MDMA and 4.6 grams of 9 MDMA pills in a polythene bag kept hidden beneath the steering wheel of a vehicle bearing registration No.KL-47-F-4675 from Kariyadu junction. It is alleged that petitioners were also travelling in the above vehicle and thus committed the abovesaid offences.
4. Petitioner in B.A.No.4357 of 2022 submits that he is innocent of the charges levelled against him. He has no connection with the alleged seized contrabands. It is also submitted that the petitioner was travelling as a gratuitous passenger in the car and that he has no connection with the abovesaid car. The petitioner has no conscious possession of any contrabands and no contrabands were seized by the police from him.
5. Petitioner in B.A.No.4347 of 2022 submitted that in the chemical analysis it is found that the allegedly seized article is methamphetamine hydrochloride and it is not MDMA. It is further submitted that the methamphetamine hydrochloride is not included in the Schedule of NDPS Act and hence the offence will not lie against the petitioner. It is also submitted that the petitioner has no connection with the alleged seizure and that the finding of the lower court while rejecting the request for bail of the petitioners holding that whether methamphetamine hydrochloride is included in the Schedule of NDPS Act or not can be considered only at the time of trial, is per se illegal.
6. The accused are in judicial custody from 21.11.2021. Since commercial quantity was involved, the bail applications filed by the accused were dismissed.
7. Learned counsel for the petitioners mainly contended on two aspects that even though the initial case of the prosecution was that contraband seized was MDMA, now as per the chemical analysis report the contraband is methamphetamine hydrochloride. The further contention is that the alleged contraband is not included in the Schedule of NDPS Act.
8. It is the specific case of the prosecution that all the accused were found in possession of the alleged contraband drug in a maruthi swift car. It has also come out in evidence that all the accused have conspired to purchase contraband from Bangalore. The account details of the accused clearly show monetary transactions in connection with the alleged crime.
9. The learned counsel for the petitioners relied on Annexure 3 judgment of this Court in B.A No.35 of 2020 and also the judgment in Mari Appa v. State of M.P., 1990 KHC 1379 to contend for the position that if the procedure laid down under the Act is not followed, the petitioners are entitled for bail. Petitioners would contend that they have no conscious possession of the alleged contraband and no contraband was seized from the person of the accused.
10. Let me first consider the contention of the petitioner in B.A.No.4357 of 2022 that even though the petitioner was travelling in the above vehicle, he has no conscious possession of contraband and no contraband is seized from his possession. It is admitted fact that the petitioner is arrested on the spot along with the contraband article which is concealed inside the car. The concept of possession has been considered by the Apex Court in various judgments. The Apex Court in Mohan Lal v. State of Rajasthan, 2015 KHC 4305, paragraph 16 of the said judgment reads as follows:
An accused involved in an offence with commercial quantity of contraband cannot be released on bail without satisfying the conditions under Section 37(2) of the NDPS Act, and the court must adhere to....
The main legal point established in the judgment is the stringent conditions for granting bail under Section 37 of the NDPS act, emphasizing the legislative intent to prevent the devastating impact o....
In narcotic offences, bail is only granted when it is proven that the accused is not involved with the contraband, with a stringent evaluation of public safety interests.
The judgment establishes the stringent parameters for granting bail under the NDPS Act, emphasizing the need to satisfy reasonable grounds for believing in the innocence of the accused and ensuring t....
In NDPS commercial quantity cases, residence in house with contraband recovery from common area establishes prima facie possession; bail denied as twin conditions under Section 37 not satisfied despi....
The judgment established that the gravity of the offence, the impact of the illicit drug trade, and the concept of conscious possession are crucial factors in determining bail eligibility under the N....
The court emphasized that in narcotics cases involving commercial quantities, a presumption of conscious possession applies to all occupants of a vehicle, requiring strict adherence to Section 37 of ....
The stringent bail conditions under the NDPS Act and the need for substantial probable causes to grant bail.
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