The burden of proving lack of conscious possession in narcotics cases lies with the accused, and bail is restricted under Section 37 of the NDPS Act when commercial quantities are involved.

ORDER

These are applications for regular bail.

2. B.A.No. 3790 of 2022 is filed by the 1st accused whereas B.A.No.3778 of 2022 is filed by the 2nd accused and B.A.No.3109 of 2022 is filed by the 3rd accused in Crime No.1790 of 2021 Chirayinkeezhu Police Station registered alleging commission of offences punishable under Sections 22 (b)(ii)(B), 22(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”).

3. Prosecution allegation is that on 24.09.2021 at about 16.50 hours, the accused persons were found in possession of 63.60 grams of MDMA kept in the residence of 1st accused and 2.100kgs of ganja kept in the Maruti Alto car bearing Registration No. KL-16-L-2419 parked in front of the house.

B.A.Nos.3790 & 3778 of 2022

4. The case of the petitioners/accused Nos.1 and 2 is that the house from which the alleged psychotropic substance and the narcotic drug were seized does not belong to them. The said house, though taken on rent was not occupied by the 1st accused for the reason that his wife was admitted in hospital for delivery. The petitioners have no knowledge about the things which were alleged to have been seized from the said house. The detecting officer has prepared the documents without any bonafides and without any scientific proof held that the alleged substance was MDMA. No detection kit was used to identify the suspected substance. It is submitted that detention/arrest of a person cannot be made solely relying on the assumptions of the police officer that too in a case of such serious nature. So far forensic laboratory report has not reached the Court which would attract the rigour of Section 37 of the NDPS Act. Petitioners were arrested on 24.09.2021 and are under detention since then. Further incarceration of the petitioners is not necessary. Even though the petitioners had preferred applications for regular bail before the Sessions Court, Thiruvananthapuram, the said applications were dismissed. Charge sheet is already laid on 12.02.2022.

B.A. No.3109 of 2022

5. The case of the petitioner/3rd accused is that he is innocent of the above allegations. The petitioner is not having any knowledge about the alleged offences against him. It is alleged by the prosecution that the contraband was seized from the house rented by the 1st accused and the alleged car involved in the above offence is owned by one Ms.Kavitha Rajan. The petitioner is no connection with the above alleged offences. The MDMA and ganja was seized from the possession of 1st accused. It is also submitted that the 1st accused is having animosity with the petitioner and on the alleged date of incident, the 2nd accused who is having acquaintance with the petitioner asked him to settle the dispute between the petitioner and 1st accused and requested him to accompany him. Meanwhile the 2nd respondent came to the alleged place and arrested the petitioner along with the other accused alleging that 1st accused is found in possession of MDMA and ganja. It is submitted that the petitioner had no knowledge about the alleged possession of MDMA by the accused. The 1st accused who is in inimical terms with the petitioner, implicated the petitioner in the above crime. It is submitted that there is absolutely nothing to connect the petitioner herein with the recovery made from the other accused. The petitioner is innocent of the offences alleged against him and he has been falsely implicated in this case.

6. The main contention raised by the petitioners is that no contraband was seized from their possession and therefore they are entitled for bail. They further contend that the 4th accused was granted bail by this Court and further that Sessions Court, Thiruvananthapuram has granted bail to accused Nos.5 and 6.

7. Learned Public Prosecutor seriously opposed the application for bail mainly contending that on getting reliable information that narcotic drugs are being kept for sale in a house by the name “Thoufiq Manzil”

and the said house was se