A prima facie case for drug-related offences can exist without possession of contraband if evidence of conspiracy is present, and bail court findings are not binding on trial courts.

ORDER :

This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita. If a lawyer argues a bail application by adverting to the merit of the case and insists for an order on merit, and if the court observes that, prima facie there is a case, whether the same is binding on the investigating authority or the trial court, is the question to be decided in this case.

2. Petitioner is the 2^nd accused in Crime No.1236/2023 of Adimali Police Station. The above case is charge-sheeted against the petitioner alleging offences punishable under Sections 20(b)(ii)B, 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').

3. The prosecution case is that, on 6.10.2023 at 2.15 pm, with the knowledge of accused Nos.2 and 3, accused No.1 transported 5.125 kgs of ganja and 78.91 gms of Methamphetamine Hydro Chloride in a car bearing registration No. KL-63/B-9639 along Korangatty- Pettimudi road in Korangatty Kara of Mannamkandam Village. The allegation against the petitioner is that he handed over 5.125 kgs of dried ganja to accused No.1. There is an allegation that all three accused hatched a criminal conspiracy for illicit traffic of ganja and Methamphetamine. Accused No.2 was arrested and produced before the court on 07.01.2024 and remanded to judicial custody.

4. Heard Adv. M.S. Breez, the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. Adv. M.S. Breez argued the matter in detail. The counsel took me through the documents produced by the prosecution and submitted that this is a case in which there is no iota of evidence against the petitioner. Therefore, it is submitted that the petitioner is entitled to bail. Adv. M.S. Breez submitted that no contraband was seized from the petitioner. He is implicated as an accused mainly based on some call records and the confession statement of the 1^st accused. The counsel submitted that the confession statement of the co-accused is not admissible. Simply because the petitioner had contacted the 1^st accused, that itself is not a reason to implicate him in a case like this. The counsel submitted that the bar under Section 37 of the NDPS Act is not applicable in the facts and circumstances of this case.

6. The Public Prosecutor seriously opposed the bail application and submitted that the petitioner was actively involved in this case and the offences alleged include the offence under Section 22(c) of the NDPS Act and hence Section 37 of the NDPS Act is attracted. Therefore, it is submitted that the petitioner is not entitled to bail.

7. This Court considered the contentions of the petitioner and the Public Prosecutor. The petitioner earlier filed a bail application before this Court. This Court considered almost all the contentions raised by the petitioner and dismissed that bail application as per Annexure-A3 order. Annexure-A3 order was passed on 09.01.2025. Thereafter the present bail application is filed on 12.02.2025. There is no bar in filing a second bail application if there is a change of circumstances. But, when this Court passed a detailed order as evident by Annexure-A3, and when there is no change of circumstances, prima facie, I am of the opinion that this bail application need not be entertained. If there is a change of circumstances, the accused can file any number of bail applications. But if there is no change of circumstances after passing a bail order, the court need not entertain a further bail application.

8. Even then, Adv. M.S. Breez forcefully argued the matter again. The main contention of the petitioner is that, no contraband is seized from the petitioner and the petitioner, who is the 2^nd accused is implicated based on some telephonic conversations with the 1^st accused. The counsel submitted that the same is not admissible as evidence. The offences alleged against the petitioner include the offence under Section 29 of the NDPS Act.Section 29 of the NDPS Act reads as follows:

29. Punish