Bail can be granted in narcotic cases if allegations lack substantial evidence, particularly regarding financing under Section 27A.

O R D E R

This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the first accused in O.R.No.2 of 2009 of the Narcotic Control Bureau, Regional Intelligence Unit, Thiruvananthapuram. The petitioner was arrested on 28.7.2009 and he is in judicial custody.

2. The offences alleged against the petitioner are under Sections 8(c) read with 21(c), 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The prosecution case is that the Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram received reliable information that one Shanavas of Kottackal, Malappuram District (first accused) was indulging in drug trafficking of heroin between India and Maldives with the help of one Atif alias Kunhappa of Kondotty and a lady by name Sarju, residing at Thiruvananthapuram. He also got information that Shanavas had already procured half a kilogram of heroin from Atif and the same would be delivered to Sarju on 18.7.2009 near the Railway Crossing Gate at Petta, Thiruvananthapuram. On 18.7.2009, Shanavas (Petitioner) was apprehended. It was found that he was carrying 500 grams of heroin. He was arrested.

4. Quantitative analysis of the contraband was done by the Forensic Science Laboratory at Chennnai, which shows that the content of Diacetyl Morphine in the contraband was 22.68 w/w. Therefore, the quantity of Herion involved in the case would not constitute commercial quantity and only an offence under Section 21(b) would be attracted.

5. If Section 21(c) is not attracted, the bar under Section 37(b)(ii) would not apply unless the other offences mentioned in Section 37 are involved.

6. In this case, it is alleged that the accused committed an offence under Section 27A as well. In B.A. No.5251/2009 filed by accused No.2, the question was considered in detail whether on the allegations made against accused persons in the present case, an offence under Section 27A could be made out. It was held in Para 17 and 18 thus:

“17. Apart from mentioning Section 27A as an offence which is alleged to have been committed by the accused, there is no factual foundation for an allegation that they have committed an offence under Section 27A of the Act. There is no allegation that the petitioner indulged in financing, directly or indirectly, any of the alleged activities. There is also no allegation that the petitioner has harboured any person engaged in such activities. The materials on record show that the first accused Shanavas purchased the heroin from the petitioner (second accused) for a sum of Rs.1,80,000/- and some amount is due to the petitioner. That means the consideration was not paid in full to the petitioner. What is the balance amount due is not forthcoming. The question is whether sale of narcotic drug to a person reserving a part of the price to be paid by the purchaser later would amount to “financing” within the meaning of Section 27A of the Act. The expression “financing” is not defined in the Act. In Blacks Law Dictionary, the verbal meaning of “finance” is shown as “to raise or provide funds”. In Chambers Dictionary, the meaning of “finance” is shown as “to manage financially; to provide or support with money”. If a person has sold narcotic drugs or psychotropic substances on credit, could it be said that he has indulged in financing? If the full amount is realised by such sale, it cannot be said that he has indulged in financing. What difference it would make if a part of the consideration is reserved to be paid at a later point of time? To my mind, it cannot be said that receipt of part payment of the sale consideration of the contraband reserving the balance to be paid at a later point of time would attract the offence of “financing” within the meaning of Section 27A of the Act. Sale of a narcotic drug on credit is different from financing the activity of sale of a narcotic drug. It cannot be said that a person who did not receive the value in full of the drug wou