Bail is the rule and jail is the exception; the court can relax stringent conditions under the NDPS Act in certain circumstances.

ORDER :

This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( BNSS ), 2023.

2. The petitioner is an accused in Crime No.2246/2023 of Vanchiyoor Police Station, Thiruvananthapuram. The above case is registered against the petitioner alleging offences punishable under Section 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

3. The prosecution case is that, on 25.11.2023 at about 02.50 AM, as per the instruction of the 2^nd accused, the 1^st accused collected 75.68 gms of MDMA from New Delhi and he brought the same at Thiruvananthapuram Railway Station. At the time of arrival of the 1^st accused, the 2^nd and 3^rd accused came to the railway station to pick up the 1^st accused from there and all the three were travelled in an autorickshaw from Central Railway Station, Thiruvananthapuram towards Kunnupuram Junction. They parked their autorickshaw at public road opposite to Akshara Offset Press at Kunnumpuram Road. The Sub Inspector of Police, Vanchiyoor got information ragarding the possession of the contraband by the accused. He proceeded to the place and arrested the accused and seized the contraband from their possession. Hence, it is alleged that the accused committed the offence. The petitioner herein who is accused No.1 was arrested on 25.11.2023.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. The counsel for the petitioner submitted that the petitioner earlier filed a bail application before this Court and this Court allowed the petitioner to file a bail application before the trial court. Accordingly the petitioner filed a bail application before the trial court. But in that bail application, the trial court found that there is prima facie violation of Section 50 of the NDPS Act and there is reasonable ground for believing that the accused not guilty of the alleged offence. Even then the bail application is dismissed. The counsel submitted that the petitioner is also entitled to the benefit of Apex Court decision in Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416], because the petitioner is in custody for 1 year and 3 months.

6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the contraband seized is commercial quantity and therefore, Section 37 of the NDPS Act is attracted.

7. This Court considered the contentions of the petitioner and the Public Prosecutor. This court perused Annexure-A4 order. It will be better to extract paragraph No.16 of Annexure-A4 order:

“On consideration of the above facts, I find that prima facie there is a violation of S.50 of the Act and there is a reasonable grounds for believing that the accused is not guilty of the alleged offence. In other words, the petitioner has substantiated the first limb of clause (ii) S.37 (i) (b)of the NDPS Act. Now the question to be considered is whether the petitioner has satisfied the second limb of the said clause of S.37 of the Act. As per S.37 of the NDPS Act the accused has to satisfy the Court that there is no likelihood of offence while on bail. From the report filed by the investigating Officer it is seen that the petitioner has committed another offence under the NDPS Act which was registered by the NCB, New Delhi as Crime No. VIII/41/DZU/2020 under S.21, 23 and 29 of the NDPS Act. In a case where there is an antecedent regarding the commission of offence of similar nature is one of the grounds for denying bail and it is one of the relevant factors while arriving the satisfaction of the second limb of sub-clause (ii) of clause (b) of Sub-section (1) of S.37. The Hon'ble High court in the decision of Sudheer v. State of Kerala 2012 (1) KLT 542 observed as follows:

"Under sub-clause (ii) of S.37(1)