The court established that under Section 37 of the NDPS Act, both conditions must be satisfied for granting bail, particularly in cases involving commercial quantities of narcotics.

C O M M O N O R D E R

B.A.No.970/2023 is an application for regular bail filed by the 2nd accused in Crime No.905 of 2022 of Angamali Police Station, Ernakulam, under Section 439 of the Code of Criminal Procedure. 3rd accused in the same crime seeks regular bail in B.A.No.1109/2023.

2. Heard the respective counsel appearing for the petitioners and the learned Public Prosecutor in detail. Perused the documents placed by the petitioners as well as the relevant documents form part of the case diary and report of the Investigating Officer produced by the learned Public Prosecutor.

3. The prosecution case is that accused 1 to 4 hatched conspiracy to possess and sell MDMA; and in continuation of the said conspiracy, they jointly collected 198.36 grams of MDMA and stored the same in Bluetooth speakers. Thereafter, the said MDMA was forwarded through Blue Dart DHL Courier service in Mumbai and received the same in Blue Dart DHL Office in Angamaly and the same was found in possession of the 1st accused when he had kept the same in a TATA Nano car bearing Registration No. KL04-AH- 4823, near Malabar Gold Jwellery, Angamali. Thereafter, the said contraband along with Hashish oil contained in a small plastic bottle of 03.89 gram and 3 LSD stamps kept on the body of the 1st accused were seized. Thereafter the 1st accused was arrested and crime alleging commission of offences punishable under Sections 22(c), 22(b), 20(b)(ii)(A), 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act' for short) was registered. 4. The specific point argued by the learned counsel for the petitioners is that there is no materials against accused Nos.2 and 3 and they were arrested and detained in custody from 05.10.2022 onwards merely on the basis of a confession statement given by the 1st accused and also on the basis of materials showing cash dealings between the 1st accused and accused Nos.2 and 3. It is argued by the learned counsel for the petitioners that since nothing was seized from the conscious possession of the petitioners and the available materials are only regarding transfer of money, the petitioners' complicity is much less and, therefore, the petitioners are liable to be released on bail and for which the rider under Section 37 of the NDPS Act would not apply, though the contraband is commercial in nature.

5. The learned counsel for the petitioners placed a decision of the Apex Court reported in [ 2022 (1) KHC 853 : 2022 KHC OnLine 6172 : 2022 (2) SCALE 14 : 2022 (1) KLT 552],State by (NCB) Bengaluru & Ors. v. Pallulabid Ahmad Arimutta & Ors. on this point. It is pointed out that, in the said case involving commercial quantity of contraband, bail granted to accused by the Karnataka High Court was challenged before the Apex Court and the Apex Court cancelled the bail granted to the 2nd accused, while confirming grant of bail to the other accused.

6. According to the learned counsel for the petitioners, the fact of the present case is similar to that in State by (NCB) Bengaluru & Ors. v. Pallulabid Ahmad Arimutta & Ors.'s case (supra). Therefore, the petitioners may be released on bail.

7. Whereas the learned Public Prosecutor strongly opposed grant of bail and pointed out involvement of the petitioners in this crime with materials to connect them in commission of this crime. It is submitted that accused Nos.1 and 2 jointly stayed at the lodge in Andheri, Mumbai from 04.09.2022 to 15.09.2022 and they had given I.D proof of one Alif Muhammed Saifudheen and the same was seized from the house of the 2nd accused during investigation. It is also argued that the 2nd and 3rd accused invested money in the account of the 1st accused and the bank details are also available in this regard. It is pointed out that there are documents to connect the 2nd and 3rd accused also in this regard, since they had entrusted money with the 1st accused to purchase the contraband seized from the possession of the 1st accused.

8. On perusal of the decisio