IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 27TH DAY OF FEBRUARY 2013/8TH PHALGUNA 1934 Bail Appl..No. 1179 of 2013 ()

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CRIME NO. 846/2012 OF PONNANI POLICE STATION , MALAPPURAM ....

PETITIONER/ACCUSED(S):

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VIJAYAN,S/O.THAMI, AGED 46 YEARS, CHERUPARAMBIL HOUSE, SUKAPURAM PO, NADAVATTAM, KAMPAMPADDI.

BY ADVS.SRI.T.G.RAJENDRAN SRI.T.R.TARIN RESPONDENTS/COMPLAINANT/STATE: -----------------------------------------------------------

1. SUB INSPECTOR OF POLICE, PONNANI POLICE STATION - 676 505.

2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

R1 & R2 BY PUBLIC PROSECUTOR SMT.T.Y. LALIZA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Kss 'CR'

P.S.GOPINATHAN, J.

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Dated this the 27^th day of February, 2013

O R D E R

Petitioner is the accused in Crime No. 846 of 2012 of Ponnani Police Station for offences under Sections 20(b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to 'the Act').

2. Petitioner was arrested on 20.09.2012. Ever since he is in judicial custody. His application for bail was rejected by the Special Judge (NDPS Act cases), Vadakara on 21.01.2013 for two reasons. One is that the offence alleged in this case was committed while he was on bail in other cases. The other reason stated is that the release of the petitioner is barred under Section 37(1)(b) of the Act. Now this petition seeking an order to release the petitioner on bail.

3. The argument advanced by the learned counsel for the petitioner is that no final report was filed within the time stipulated under Section 167(2) of the Code of Criminal Procedure (CrPC) and therefore further detention of the petitioner is illegal. It is also contended that Section 37 of the Act is not applicable to the case on hand. The case was registered with an allegation that the petitioner was possessing 1.2 Kg of ganja. Admittedly, it is not a commercial quantity. Therefore, Section 37 has no application. Neither sub-clause 4 of section 36 A of the Act is also applicable.

4. For a correct appraisal of the case, reading of Section

37 would be relevant:

[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.]

Going by the above provision, I find that it is applicable only in the cases of offences under Sections 19, 24 and 27 A and cases involving commercial quantity. Since the contraband seized from the petitioner is below the commercial quantity, Section 37 is not applicable. The fact that the final report was filed beyond the period prescribed under Section 167(2) CrPC, is not disputed. When there is failure on the part of the investigating officer to complete the investigation and to file the final report within the time limit prescribed under Section 167(2) CrPC, even if the crime was committed while the accused was on bail in another case, t