The court reaffirmed that under Section 37 of the NDPS Act, bail can only be granted if there are reasonable grounds to believe the accused is not guilty, especially when commercial quantities of narcotics are involved.

COMMON ORDER

The applications are filed under Section 439 of the Code of Criminal Procedure, 1973 (in short 'Code’,) and Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short ' BNSS ') by the accused 1 to 3 in Occurrence Report No.63/2023 of the Ernakulam Excise Range Office,which is registered against them for allegedly committing the offences punishable under Sections 20 (b)(ii)(A), 22(c), 22(a), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioners were arrested on 19.12.2023. B.A.No.5206/2024 is filed by the first accused and B.A.No.6654/2024 is filed by the accused Nos.2 and 3. As the applications arise out of the same occurrence report, they are consolidated, jointly heard, and are being disposed of by this common order. The accused 2 and 3 had earlier filed B.A No.11622/2023, which was dismissed by this Court as per Annexure-2 order.

2. The prosecution case, in brief, is that: on 19.12.2023, the Detecting Officer and party received a secret information that the accused were in possession of narcotic drugs and psychotropic substances. Accordingly, at 22:50 hours, they intercepted a car bearing Reg.No.Kl-47J-3690 at Chalikkavattam, Ernakulam, and a conducted body search on the accused and a search of the vehicle. In the body search that was conducted on the accused, six numbers of LSD Stamps were recovered from the first accused and 4 Nos. of LSD Stamps, 0.231gms of MDMA and 20 gms of Ganja were recovered from the dash board of the car belonging to the mother of the first accused. The accused had conspired to deal with the contraband articles and committed the above offences. The six Nos. of LSD Stamps recovered from the body of the first accused weighed 0.472 gms. After deducting the weight of the zip lock cover weighing 0.399 gms, the weight of six LSD stamps was 0.073 gms. Similarly, the 4 LSD stamps recovered from the dash board of the car weighed 0.444gms. After deducting the weight of the zip lock cover weighing 0.399 gms, the weight of the 4 LSD stamps was 0.045 gms. Thus, the the total weight of 10 LSD stamps was 0.118 gms. As per the schedule attached to the Act, the said contraband is of a commercial quantity. Thus, the accused have committed the above offences.

3. Heard; Sri.Santhosh Kumar T.P and Sri. Mansoorali., the learned counsel appearing for the petitioners and Smt.Seetha.S, the learned Senior Public Prosecutor.

4. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material to substantiate the petitioners' culpability in the came. The Investigating Officer has deliberately implicated the petitioners as accused in the case. The Detecting Officer has failed to comply with the mandatory provisions of Section 50 of the Act. The body search of the first accused was conducted in the presence of a Gazetted Officer. The alleged weight of the LSD Stamps is 0.118 gms, which is just above the commercial quantity. The burden is on the prosecution to prove that the recovery was conducted as contemplated under the law. The petitioners do not have any criminal antecedents. There are reasonable grounds to believe that the petitioners have not committed the above offences. The first accused had filed a similar application before the Court of Session, Ernakulam, which was dismissed as per Annexure-I order produced in B.A No.5206/2024. The accused 2 and 3 had filed a similar application before this Court, which was dismissed as per Annexure-2 order produced in B.A 6654/2024. A closer reading of the materials on record would reveal that the contraband is below 0.1gm. Therefore, the contraband is of an intermediate quantity. Hence, the petitioners are entitled to be enlarged on bail. Therefore, the applications may be allowed.

5. The learned Public Prosecutor seriously opposed the applications. She submitted that there are incriminating materials to substantiate the petiti