ORDER :

This is an application for regular bail.

2. The petitioner is the 5th accused in Crime No. 47/2021 registered under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”).

3. The prosecution case in brief is that, on 12.09.2021 at 8:15 am the accused were found in possession of and transporting 145.5 kgs of ganja in the bus bearing Reg.No. KL 40 H-452 Rao’s Travels Tourist Bus and the cars bearing Registration No. KL 07 CG 4567 Ertiga and KL 33 G 6670 Eon at the service road of Salem-Kanyakumari National Highway at Padinjare Yakkara, Kannadi II, Palakkad. The prosecution allegation against the petitioner is that he was a passenger in KL-33 G 6670 Eon Car from which 20.5 kg ganja was found. The petitioner was arrested by the Excise Enforcement and Anti Narcotic Special Squad on 12.09.2021 and produced before the jurisdictional court on that day and is in judicial custody since then. He has been in judicial custody for over 190 days. The petitioner had filed two bail applications before the District and Sessions Court - IV, Palakkad, both of which were rejected.

4. Petitioner submits that he has been falsely implicated in the abovesaid crime. The vehicles from which ganja was allegedly recovered are not in the ownership of the petitioner. The petitioner used to work with his father who is a piling contractor and they are working in different parts of Kerala and Karnataka and that on 12.09.2021 he had gone to Yakkara junction to arrange some power tools and to pick up a worker and it is on his way back he was taken into custody by the Excise Department from a tea shop near Yakkara Junction in Salem-Kanyakumari National Highway. Petitioner has no conscious possession of the alleged contraband and that there is no evidence to link the petitioner to the alleged crime and with regard to the alleged possession of seized ganja, except the confession statement of the co-accused, which is no longer valid in the eye of law in view of the judgment in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. Petitioner also relied on the order in BLAPL No.9629 of 2021 of the Orissa High Court in this regard. It is contented by the learned counsel for the petitioner that even going by the prosecution case the alleged seized ganja comprised of “leaves and stumps”. Petitioner relied on Section 2(iii)(b) of the NDPS Act which defines 'ganja' and contended on the basis of the same that the leaves and stumps will not fall under the definition of ganja and therefore rigor of Section 37 will not be attracted in the present case. In support of the contention, the learned counsel for the petitioner relied on the order in Misc. Criminal Case No.27153 of 2022 of the Madhya Pradesh High Court and Criminal Petition No.101982 of 2022 of Karnataka High Court. Petitioner has a further case that sampling was done in total violation of the standing orders issued by the Government in this regard and therefore the alleged seizure and sampling are bad in law. To substantiate the above contention, counsel for the petitioner relies on the judgments in Amani Fidel Chris v. Narcotics Control Bureau, 2020 SCC OnLine Del 2080; Noor Aga v. State of Punjab, (2008) 16 SCC 417; Union of India v. Mohanlal, (2016) 3 SCC 379; Gaunter Edwin Kircher v. State of Goa, (1993) 3 SCC 145 and also orders passed by the Madhya Pradesh High Court in MCRC No. 19405/2022, Telangana High Court in Crl. Pet. No. 4428/2022, Delhi High Court in B.A. No. 3076/2020, Allahabad High Court in Crl. Misc. Bail Application No. 18303/2020 and Criminal Misc. Bail Application No.19743 of 2020 to contend for the position that petitioner is entitled to bail when sampling was done in violation of the Standing Orders issued in this regard. It is also contended that the decision in Amani Fidel Chris's case supra was confirmed by the Apex Court in SLP (Crl) No. 5088/2020.

5. The application for bail is seriously opposed by the learned Public Prosecutor, who upon i