The court upheld the principle that involvement in serious narcotics offences, particularly with substantial quantities, warrants the denial of bail even if procedural arguments are raised post-arrest.

The above bail application has been placed before this Court as per order dated 14.02.2024 by another learned Single Judge based on the Apex Court judgment in Kusha Duruka v. State of Odisha [ (2024) 1 KHC 389 ].

2. The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 3rd accused in Crime No.352/2022 of the Kuruppampady Police Station, Ernakulam, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 29 , 27A, 8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 22.05.2022.

3. The gist of the prosecution case is that the accused in furtherance of their common intention hatched a conspiracy and the 1st accused was found in possession of 248.165 kilograms of dry ganja. On the basis of the confession made by the 1st accused, the 3rd accused was arraigned in the crime. It is revealed in the investigation that, the 3rd accused had gone to Orissa and collected the contraband article from the 8th accused. There are materials to substantiate that there were communications between accused and also the financial transactions. Thus, the accused have committed the above offences.

4. The learned counsel for the petitioner would submit that the petitioner is totally innocent of the acccusations leveled against him and that he has been falsely implicated based on the confession statement made by the 1st accused. Petitioner submits that he is in custody from 22.05.2022 onwards and the investigation is complete and final report has been laid.

5. The learned Public Prosecutor opposed the application for bail and contends that there is sufficient materials to prove that the petitoner is involved in the above said crime and that the investigation revealed that, it is the petitioner who went to Orissa and collected the contraband articles from the 8th respondent. The learned Public Prosecutor also brought to my notice that the petitioner has several call contacts with accused Nos.1 and 2 and that the petitioner and the 1st accused has stayed in a lodge in Orissa in connection with the commission of the offence. It is further contented that the quantity involved is 248.165 kilograms of ganja and that, if petitioner is let off on bail there is every chance for him to commit a similar offence and therefore the application may be dismissed.

6. This Court has considered the bail application submitted by the petitioner as per Annexure A1 order and rejected the same specifically taking note of the specific overt act of the petitioner and that he is the one who went and collected the contraband articles from Orissa which is of commercial quantity. The petitioner has taken an alternative contention in the bail application based on the provisions of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage and Sampling and Disposal) Rules, 2022 and alleged procedural violation. I am afraid the said contention cannot be accepted while considering the bail application, in as much as the Rules came into force only on 23.12.2022, whereas the alleged seizure and arrest was on 15.4.2022. Further, Section 52A only speaks about the disposal of seized Narcotic Drugs and Psychotropic Substances, and that the inventory prepared and the photograph of narcotic drugs or conveyances and any list of samples drawn as per the provisions of Section 55 (a) of the NDPS Act, 1985 certified by the Magistrate shall be taken as primary evidence in respect of such offence.

7. Yet another contention taken is regarding mixing of the contraband before taking sample. The Apex Court in Sumit Thomar v. State of Punjab [ (2012) 4 KLT SN 117 ] has considered a similar contention regarding the mixing of contraband found in the bags and taking samples thereafter, and negating the contentions of the appellant therein and held in paragraph 10 as follows:-

“10) The next contention, according to the learned senior c