ORDER

Dated this the 15th day of March, 2023 This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the sole accused in crime No.7/2023 of Devikulam Excise Range, Idukki.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary along with detailed report submitted by the Investigating Officer.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 20(b)(ii)(A) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act'). The allegation of the prosecution is that, at about 3.20 pm on 25.01.2023, the accused was found in possession of 7 gram of dry Ganja and 0.126 gram of LSD (7 stamps of LSD) near Velmudy Kara, Munnar, while the petitioner was transporting the same on a motor bike bearing registration No.KL-82-1280, against the prohibitions contained in the NDPS Act. Accordingly the accused was nabbed and the contraband was seized. Pursuant to the recovery and arrest, crime alleging commission of the above offences was registered and is on investigation.

4. The learned counsel for the petitioner would submit that, the petitioner is innocent and the petitioner is a 25 year old person. Therefore, taking note of the custody of the petitioner from 25.01.2023 and the progress of investigation, he may be enlarged on bail.

5. While opposing grant of bail to the petitioner, the learned Public Prosecutor would submit that, red handed recovery of commercial quantity of contraband led to registration of this crime and the investigation is on the extreme primitive stage. Further, it is submitted that, in order to grant regular bail to the petitioner, who alleged to have possessed commercial quantity of contraband, twin conditions provided under Section 37 of the NDPS Act must be satisfied.

6. On perusal of the prosecution records, commercial quantity of contraband to the tune of 7 gram of dry Ganja and 0.126 gram of LSD (7 stamps of LSD) recovered red handedly from the petitioner and in such a case, this Court must satisfy the twin conditions stipulated under Section 37 of the NDPS Act, while granting bail to an accused, who alleged to have possessed commercial quantity of contraband. Therefore, the rigour under Section 37 of the NDPS Act would squarely apply in this case.

7. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 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 specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

8. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail.

9. The Apex Court considered the mea