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 relevant case law precedents.

ORDER :

This is an application for regular bail, filed under Section 439 of the Criminal Procedure Code, by the petitioner, who is the 1st accused in Crime No.42/2023 of Kanjirappally Police Station, Kottayam, where the prosecution alleges commission of offences punishable under Section 22(c) & 20(b)(II)(A) and 29 of the Narcotic Drugs and Psycotropics Substances Act (`NDPS Act' for short).

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary and report of the Investigating Officer, placed by the learned Public Prosecutor.

3. The prosecution case, initially, at the time of preparing the search list was that the 1st accused possessed 300 ml of LSD stamp and 1 gram of Hashish at 8.10 p.m on 08.01.2023 and later when the contraband was weighed before the Magistrate, it was found that the LSD stamps recovered from the 1staccused (5 in numbers) would weigh 0.11 gram and the Hashis would come to 0.26 gram. Thereafter the 2nd accused was also arrested on the allegation that he had sold the contraband to the 1st accused herein.

4. It is submitted by the learned counsel for the petitioner that the contraband in this case when weighed in a carat weighing machine, it was found as 0.300 mg of LSD stamps and 0.1 gram of Hashish oil. Accordingly, it is submitted that when the same, if converted into grams, the same would come to a small quantity and therefore the petitioner deserves bail since Section 37 of the NDPS Act has no application in so far as intermediae quantity of contraband is concerned. He also pointed out that the petitioner, who has been in custody, for the last more than one year otherwise entitled for bail.

5. In so far as the weight conversion as argued by the learned counsel for the petitioner is not supported by any convincing data.

6. Strongly repelling these contentions, the learned Public Prosecutor categorically argued, relying on the recitals in the case diary, that when the 1st accused was arrested along with the contraband, the contraband was weighed in a balance made available, from a jewellery, and the weight of the LSD stamp was stated as 0.300 mg instead of 300 CT. But when the contraband was produced before the Magistrate, the same was weighed in the presence of Magistrate and it was found that the weight in gram in so far as LSD is concerned would come to 0.11 gram and the Hashis would come to 0.26 gram. Thus this fact was reported to the court and after investigation final report also was laid alleging that accused Nos.1 and 2 committed the above offences. It is also submitted that therefore the quantity of contraband involved in this crime is commercial in nature and a mistaken measurement shall not be adjudged in favour of the accused, that too, at the stage of considering bail. Therefore, there is no reason to relax the rider under Section 37 of the NDPS Act and the petitioner is not liable to be released on bail. It is also pointed out by the learned Public Prosecutor that in this case a very serious offence alleged to be committed where rider under Section 37 of the NDPS Act would apply and, therefore, the petitioner is not liable to be released on bial. He also placed a decision of the Apex Court reported in [2010 KHC 4631 : 2010(2) KLD 534 : 2010 (8) SCALE 594 : 2010 (4) KLT SN 11 : AIR 2010 SC 3594 : 2010 (9) SCC 85 : 2010 CriLJ 4715 : 2011 (99) AIC 161 : 2010 (3) SCC (Cri) 1139], Dehal Singh & anr. v. State of Himachal Pradesh to contend that discrepancy in weight of samples by itself does not cast any doubt on prosecution case. In the said decision the Apex Court held that it is common knowledge that weighing scale and weight kept in the grocery – shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, in the facts and circumstances of this case, is not of much significance. Sample was taken by a common weighing scale and weight found in a grocery shop, whereas the weight in the laborat