IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 Bail Appl..No. 7162 of 2011() ----------------------------- CRIME NO.212/2011 OF PERUMPADAPPU POLICE STATION MALAPPURAM DISTRICT PETITIONERS :ACCUSED: ----------------------- 1. SUBAIR,S/O.SAIDALI, KAYYALAKKAL HOUSE, PALLIKKURUPPU P.O.,MANNARKKAD. 2. SHERIFF,S/O.SAIDALI, AGED 38 YEARS, KAAYYALAKKAL HOUSE, PALLIKKURUPPU P.O MANNARKKAD BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: --------------- 1. SUB INSPECTOR OF POLICE, PRUMPADAPPU POLICE STATION-676505. 2. STATE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.7162 of 2011 ---------------------------------------------- Dated this the 06th day of September, 2011 ORDER This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.212 of 2011 of Perumpadappu Police Station, Malappuram District. 2. The offences alleged against the petitioners are under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'). The case was originally registered under Section 22(c) of the NDPS Act and Section 120B read with Section 34 of the Indian Penal Code. Later, a report was filed and the sections of offence were altered to Sections 21(c) and 29 of the NDPS Act. 3. The prosecution case is the following: On 28.6.2011 at about 4 PM, the Sub Inspector of Police, Perumpadappu Police Station got secret information that some persons belonging to Mannarkkad would arrive near Taj Theatre, Palappetty, to hand over brown sugar to one Tharayil Mujeeb Bail Appln.No.7162/2011 : 2 : of Palappetty. The police party went to the spot. They found four persons near the Taj Theatre. On seeing the police party, one among the four persons escaped from the place in an Alto car, bearing registration No.KL5-7075. The other three persons were apprehended. They were: (1) Subair, (2) Sheriff (brother of Subair) and (3) Mujeeb. The police got information that the person who escaped from the scene of occurrence was Harris. He was made accused No.4. On search of the body of accused Nos.1 to 3, a quantity of 900 grams of brown sugar was seized from the possession of accused No.1 and three small packets containing brown sugar were seized from the possession of accused No.2. There was no contraband in the possession of Mujeeb, accused No.3. 4. According to the prosecution, the brown sugar has a market value of Rupees Fifty lakhs. On the packets containing brown sugar, it was printed that the same was “Afgan product”. According to the prosecution, accused No.1 belongs to an extremist organization called NDF and that the brown sugar was imported into India for facilitating terrorist activities in the coastal area of the State of Kerala. It is also Bail Appln.No.7162/2011 : 3 : submitted that Special Branch and Intelligence Bureau also are looking into the matter as to whether the accused persons have any connection with terrorist groups working abroad. Accused No.4 Harris is yet to be arrested. 5. Originally the offence alleged was under Section 120B read with Section 34 of the Indian Penal Code and Section 22(c) of the NDPS Act. It would appear that the investigating officer was under the misapprehension that brown sugar is a psychotropic substance. Later, the Section of offence was corrected. So also, Section 120B of the Indian Penal Code need not be invoked, since Section 29 of the NDPS Act covers the criminal conspiracy to commit an offence punishable under Chapter IV of the NDPS Act. Even after altering the Section of offence, prima facie, it would appear that all the relevant Sections have not been included. On the basis of the allegations, it would appear, prima facie, that Sections 23(c) and 27A of the NDPS Act would also apply to the case on hand. 6. The learned counsel for the petitioner submitted that since originally the offence was registered under Section Bail Appln.No.7162/2011 : 4 : 22(c) of the N.D.P.S. Act, there is no justification for altering the Section as 21(c) of the N.D.P.S. Act. It is submitted on that ground alone the petitioner is entitled to be released on bail. The offence originally was registered under Section 22(c) of the Act under the misapprehension that the contraband was a psychotropic substance. The mistake was sought to be corrected by filing a report before court. Accordingly, Section was altered into Section 21(c) of the NDPS Act. It cannot be said that on that ground the petitioner is entitled to bail. Considering all the relevant aspects including nature of the contraband and other details furnished in the F.I. Statement and in the Mahazar, I am not inclined to accept the contention put forward by the petitioner in this regard. The learned Counsel for the petitioner also submitted that though three small packets were seized from the possession of the second accused, the same was not weighed by the S.I. Of Police. All the three packets were taken as samples. This is illegal. On that ground also the petitioner is entitled to bail. I am not inclined Bail Appln.No.7162/2011 : 5 : to accept this contention. A quantity of 900 gms. of brown sugar was seized from the possession of the first accused. The weight of the same was taken and samples were taken from the same. As regards the three packets seized from the second accused, since the quantity was meagre, probably all the three packets were taken as samples. Prima facie, I do not find any illegality in the same. This matter will be looked into at the time of trial. 7. It is well settled that both the conditions under sub- clause (ii) of clause (b) of sub-section (1) of Section 37 of the NDPS Act must be satisfied to enable the Court to grant bail to an accused in a case involving commercial quantity where the Public Prosecutor opposes the application for grant of bail. In the present case, there are no reasonable grounds for believing that the petitioners are not guilty of the offences alleged. I am also not satisfied that the petitioners are not likely to commit any offence while on bail. Therefore, the petitioners are not entitled to the grant of bail and the Bail Application is liable to be dismissed. Bail Appln.No.7162/2011 : 6 : For the aforesaid reasons, the Bail Application is dismissed. It is made clear that the findings and observations herein above shall not constitute findings for the purpose of trial and disposal of the case. K.T.SANKARAN, JUDGE skj