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2023 Supreme(Online)(KER) 6440
HIGH COURT OF KERALA
A. BADHARUDEEN, J
SHIFNA N K – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl. 9568/2022
SUSMITH KUMAR T.D, T.O.DEEPA, C.SIVADAS, SMT.SHEEBA THOMAS
The NDPS Act imposes stringent conditions for bail in cases involving commercial quantities of narcotics, requiring substantial grounds for believing an accused's innocence.
Headnote:
Bail - Narcotic Drugs - NDPS Act - 8(c), 22(c), 29, 37 - The court analyzed provisions relating to bail under the NDPS Act and clarified the conditions required for granting bail when commercial quantity of narcotics is involved, emphasizing 'reasonable grounds' for believing innocence of the accused.
Fact of the Case:
The petitioner, the 2nd accused in a narcotics case, sought bail after being arrested for possession of MDMA. The prosecution alleged that the accused jointly possessed 75.458 grams of MDMA, while the petitioner claimed only 6.40 grams was found in her possession, argued the chemical analysis revealed it was Methamphetamine, not MDMA.
Finding of the Court:
The court found that the illegal drug involved constituted a commercial quantity as defined by law, affirming that the definitions under the NDPS Act must be adhered to. The court held that both conditions under Section 37 must be satisfied to grant bail, which were not fulfilled in this case.
Issues: Whether the accused could be granted bail under the NDPS Act given the nature of the charges and the quantity of drugs involved.
Ratio Decidendi: The court determined that the bail application must meet the dual condition of 'reasonable grounds' for believing the accused is not guilty and that they will not commit further offenses while out on bail, particularly when commercial quantities are involved.
Final Decision: The bail application is dismissed.
O R D E R
Dated, this the 8th February, 2023 This is a petition filed under Section 439 of the Code of Criminal Procedure, by the petitioner, who is the 2nd accused in Crime No.22/2022 of Excise Range Office, Nilambur, where she alleged to have committed offences punishable under Sections 8 (c), 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 , (hereinafter referred as 'NDPS Act', for short) and the petitioner seeks regular bail.
2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
3. The prosecution allegation in this case is that at about 8:45 p.m. on 11.09.2022, when the Excise Range Inspector and party conducted routine examination of vehicles near Excise Check Post, Vazhikkadavu, accused Nos.1 to 4 carried 75.458 grams of MDMA in one Jeep and two motor bikes viz., KL 7Q 4579, TN 65 AD 6976 and KL 71E 6911. Accordingly, accused Nos.1 and 4 were nabbed and the contraband taken into custody and crime was registered alleging commission of the above offences.
4. While canvassing regular bail to the 2nd accused, where commercial quantity of 75.458 gram of MDMA, jointly possessed by the accused, got recovered, it is submitted by the learned counsel for the petitioner that the prosecution allegation as to possession of MDMA is absolutely false and as per the chemical analysis report, it was found that the contraband was not MDMA, but Methamphetamine. Therefore, the prosecution allegation as to possession of MDMA, is false. He also pointed out that even otherwise the contraband alleged to be taken by the excise party though would come to 75.458 gram, when the same is individually taken, the contraband seized from the petitioner/2nd accused is only 6.40 gram. Therefore, the petitioner did not possess commercial quantity of contraband individually. As such, the petitioner, who has been in custody from 11.09.2022, may be released on bail.
5. Whereas, the learned Public Prosecutor zealously opposed bail and submitted that the 1st accused is the husband of the 2nd accused and the other persons, are closely related to 1st and 2nd accused, jointly transported the contraband and the excise party altogether collected 75.458 gram. She also submitted that though the chemical analysis report suggests the same as Methamphetamine instead of Methylenedioxymethamphetamine (MDMA). Further, it is submitted that 50 gram of Methaphetamine alone also is commercial quantity and, therefore, the contention raised by the learned counsel for the petitioner to hold that commercial quantity of MDMA not recovered cannot be countenanced. The difference between Methylenedioxymethamphetamine (MDMA) and Methaphetamine is a matter of evidence to be given by the scientific experts. Any how, both items were prohibited under the NDPS Act. Since the contraband found to be Methaphetamine and 50 gram of Methaphetamine is commercial quantity, this Court cannot grant bail without satisfying the twin conditions provided under Section 37 of the NDPS Act.
6. Hence, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. of the NDPS Act provides as under:
37. Offences to be cognizable and non- bailable.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974),-- (a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specif
