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2021 Supreme(Online)(KER) 46773
HIGH COURT OF KERALA
SHIRCY V., J
MUHAMMED SHAFEER – Appellant
Versus
THE STATE OF KERALA – Respondent
Bail Appl./5925/2021
BABU S. NAIR
Possession of ganja in intermediate quantity does not fulfill conditions for bail denial under the NDPS Act, allowing for release.
Headnote:
Bail - Narcotic Drugs - NDPS Act Section List - The court analyzed Sections 20(b)(ii)(C), 29, 42, and 37(1)(b)(ii) of the NDPS Act, determining that the quantity of ganja possessed was intermediate, not commercial, influencing the decision to grant bail despite prosecution claims of a larger seized quantity.
Fact of the Case:
Accused petitioners were arrested for possessing 9.820 kgs of ganja while conducting a sale, linked to a larger seizure from a third party.
Finding of the Court:
The court found that the petitioners possessed only an intermediate quantity of ganja, thus rejecting the prosecution's assertion that they held a commercial quantity.
Issues: Whether the petitioners should be granted bail given the amount of narcotics seized and compliance with statutory provisions of the NDPS Act.
Ratio Decidendi: The court held that the possession of an intermediate quantity does not satisfy the rigorous conditions under Section 37(1)(b)(ii) of the NDPS Act for denying bail.
Final Decision: The petitioners were granted bail subject to specific conditions.
ORDER
Dated this the 11th day of October, 2021 This application is filed by the petitioners, accused Nos. 1 and 2, for their release on bail as they are undergoing incarceration since 06.06.2021 in connection with Crime No. 19 of 2021 of the Excise Range Office, Parappanangadi, Malappuram District, registered for the offences punishable under Sections 20 (b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act').
2. The prosecution allegation is that on 06.06.2021, the Excise Inspector attached to the Excise Intelligence and Investigation Bureau had passed a secret information to the Range Excise Inspector that some persons are dealing with narcotic items at a place near Parakkadavu bridge, Chelembra Village, Kondotty Taluk. So, the Excise officials, after complying with the formalities, proceeded to the said place and when they reached there by 11 p.m., they found the petitioners in possession of 9.820 kgs. of ganja, concealed in a scooter bearing Registration No.KL 11 BJ 3077, for the purpose of sale and they were arrested with the contraband. Thereafter, on getting information from these petitioners, they have proceeded to the residential house of the 3rd accused bearing No. 8/463 of Kadalundy Panchayat and seized 33.338 kgs. of ganja kept in a polythene sack and stored on the back side of the kitchen of his residential house and the 3rd accused was also arrested. The case was thus registered against the accused for having committed the aforesaid offences.
3. The learned counsel for the petitioner has vehemently argued that the quantity of the contraband seized from these petitioners is only 9.820 kgs. which is intermediate quantity. But they have been booked for having committed the offences punishable under Section 20 (b)(ii)(C) and 29 of the NDPS Act. In fact 33.338 kgs. of ganja was seized from the possession of the 3rd accused and not from the possession of these petitioners and therefore, the quantity of the contraband involved is only intermediate quantity and as they are undergoing incarceration since 06.06.2021, they are entitled to be released on bail. It is also pointed out that the investigating officers have not complied with section 42 of the NDPS Act and on that ground also, they are entitled to be released on bail.
4. The learned Public Prosecutor refuted the contention raised by the learned counsel for the petitioners by pointing out that the total quantity of the contraband seized from the petitioners are 43.158 kgs. which is commercial quantity and so, they are not entitled to be released on bail at this stage. 5. Heard the learned counsel for the petitioners as well the learned Public Prosecutor and perused the records.
6. The records as such produced by the learned Public Prosecutor would reveal that the detecting officer has found these petitioners in possession of 9.820 kgs. of ganja concealed in their scooter bearing No. KL 11 BJ 3077. They were apprehended on getting information from the Excise Inspector of Excise Intelligence Bureau. They were arrested with the contraband at 11 p.m. The said contraband was seized after complying with the formalities and they were apprehended then and there. The detection of 33.338 kgs. of ganja from the residence of the 3rd accused was at 1 p.m. and that was of course on the basis of the information/confession statement of these petitioners. But the prosecution case itself is that these petitioners have purchased 9.820 kgs. of ganja from the 3rd accused for conducting sale of the same. Prima facie, the records would indicate that what is seized from their possession is in fact 9.820 kgs. of ganja. The rest was seized at a different time from a different place from the possession of a different person. Of course, it may be as per the information supplied by the petitioners. But, the place of seizure and apprehension of the 3rd accused had occurred subsequently. So, as such it is not possible to conclude at least at this stage that t
