IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 Bail Appl..No. 5718 of 2009() ----------------------------- O.R.1/2006 OF NARCOTIC CONTROL BUREAU, TRIVANDRUM PETITIONER/ 3RD ACCUSED: -------------------- USMAN @ USMAN HAJI PARAYARUKUZHIYIL HOUSE, AMAYUR, PATTAMBI, PALAKKAD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/COMPLAINANT/STATE: --------------- 1. NARCOTICS CONTROL BUREAU REGIONAL INTELLIGENCE UNIT TRIVANDRUM REPRESENTED BY ITS PROSECUTOR. 2. STATE REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.C.P.UDAYABHANU (STANDING COUNSEL) R2 BY PUBLIC PROSECUTOR SRI.B.JAYASOORYA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ B.A.NO. 5718 OF 2009 ------------------------------------------ Dated 9th October 2009 O R D E R Petitioner is the third accused in O.R.No.1/2006 of Narcotic Control Bureau, Thiruvananthapuram, now pending as S.C.499/2006 on the file of Additional Sessions Judge, Palakkad. At the investigation stage even though petitions filed for bail were dismissed twice, as per order dated 21/8/2006 bail was granted by this court on conditions. Narcotic control Bureau challenged that order before the Supreme court in Crl.A.No.1368/2008. As per order dated 29/8/2008, the order granting bail was set aside holding that the earlier orders passed by this court show that petitioner is alleged to be the kingpin of illicit drug trafficking and 7.785 Kgs. of heroin was attempted to be transported to Saudi Arabia and in such circumstances, bail granted by this court without taking note of the decisions of the Apex court in Durand Didier v. Chief Secretary, Union Territory of Goa (1990 (1) SCC 95), Union of BA 5718/09 2 India v. Ram Samujh & anor. (1999 (9) SCC 429) and Babu alias Tazmul Hossain v. State of Orissa (2001 (2) SCC 566) is unsustainable. Petitioner was thereafter arrested on 9/5/2009, in some other case, by the local police and produced before the Sessions court. This petition is now filed by the petitioner contending that in view of the changed circumstances, he is to be released on bail. 2. Learned counsel appearing for the petitioner and the learned counsel appearing for first respondent were heard. 3. Learned counsel appearing for the petitioner submitted that the report submitted by Assistant Chemical Examiner, Customs office, Kochi, though show that the contraband article seized is heroin, the report itself shows that there was no facility to conduct quantitative analysis and therefore, at the instance of the first respondent samples were sent for chemical analysis to Central Forensic Science Laboratory, Hyderabad and Annexure-I report received from the Deputy Director, Toxicology, Central Forensic Science Laboratory, Hyderabad establish that on physico-chemical and BA 5718/09 3 instrumental analysis of the samples at the laboratory, Diacetyle morphine (heroin) could not be detected in all the three exhibits and sample S2 is found to be derivative of Carbohydrate while sample S5 and S8 were found to contain Caffeine. It is argued that when the said report rules out presence of heroin or any narcotic substance, petitioner is entitled to be released on bail. Learned counsel relying on the decisions of the Apex court in Michael Raj v. Intelligence Officer (2008 (2) KLT 36 (SC)) argued that without a qualitative analysis of the offending article petitioner cannot be convicted and in any case, in the light of the report of the Central Forensic Laboratory he is entitled to bail and earlier order passed by the Apex court will not disentitle the petitioner from being enlarged on bail in view of the changed circumstances. 4. Learned counsel appearing for the first respondent pointed out that the quantitative test prescribed in Michael Raj's case (supra) is mandatory only for the purpose of deciding whether it is a small quantity and commercial quantity as it BA 5718/09 4 would affect the sentence to be awarded and based on the absence of quantitative analysis, an accused in a N.D.P.S case cannot be released on bail. It is also pointed out that as found by the Apex court, when petitioner is a kingpin of the illegal drug trafficking and the quantity of the drug involved is more than 7 kgs. it is not in the interest of justice to release the petitioner on bail. Learned counsel also argued that when the report prepared by the Assistant Chemical examiner shows that samples contained heroin, based on the report of the Central Forensic Science Laboratory alone at this stage, it cannot now be held that it is not a narcotic drug and therefore, no offence under the N.D.P.S Act is committed and it is a matter for evidence and therefore, petitioner is not entitled to be enlarged on bail. 5. While considering the question whether petitioner is to be enlarged on bail or not, the deep concern expressed by the Apex court in various decisions with regard to the clandestine smuggling of narcotic drug by the powerful drug mafia, cannot be ignored. Though bail was granted by this court, it BA 5718/09 5 was cancelled by the Apex court based on the said principles. The question is whether based on a subsequent report of the Central Forensic Science Laboratory, it is to be found that petitioner is not liable to be convicted for the offence under N.D.P.S Act and he is to be released on bail. In the light of the two conflicting reports one by the Assistant Chemical Examiner of Customs office, Kochi which establishes that it is a narcotic drug and the other by the Central Forensic Science Laboratory, Hyderabad which rules out the presence of the narcotic drug, in the absence of a similar provision as in the Prevention of Food Adulteration Act which provides for over ruling the report of the Public Analyst by the report of Central Food Laboratory, it is not possible at this stage to decide whether report of the Central Forensic Science Laboratory is to be referred and whether petitioner committed the offence under N.D.P.S Act or not. Which report is to be accepted and what is the value of the failure to conduct the quantitative test and that of the report of Central Forensic Science Laboratory are all matters to be considered at the time of evidence and BA 5718/09 6 solely based on the report of Central Forensic Science Laboratory, I find it not in the interest of justice to release the petitioner on bail. Hence petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.