IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Bail Appl..No. 6332 of 2009() --------------------------------------- O.R. NO.2 OF 2009 OF NCB RIU, THIRUVANANTHAPURAM. PETITIONER/IST ACCUSED: ------------------------------------------ S.SHANAVAS, AGED 39 YEARS, S/O.SYED, TC.35/494, VINDYA GARDEN, VALLAKADAVU POST, THIRUVANANTHAPURAM. BY ADV. SRI.BLAZE K.JOSE RESPONDENT/COMPLAINANT: ----------------------------------------------- INTELLIGENCE OFFICER NCB RIU, THIRUVANANTHAPURAM, REPRESENTED BY SPECIAL PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. M.S. BREEZ, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6332 of 2009 ------------------------------------ Dated this the 4th day of November, 2009 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 B.A. No. 6332/2009 2 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 B.A. No. 6332/2009 3 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 B.A. No. 6332/2009 4 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 would be in a more disadvantageous position than a person who B.A. No. 6332/2009 5 got the full price of the same. The expression “financing” is not related to the payment of the value of the narcotic drug. On the other hand, it involves an activity other than sale or purchase of the narcotic drug, in which a person invests or provides funds or resourses for facilitating the activities mentioned in sub-clauses (i) to (v) of clause (viiia) of Section 2 of the NDPS Act. “Financing” involves the presence of a party who is not a party to the sale of the drug. “Illicit traffic” is defined in Section 2(viiia) of the Act. Activities under sub-clauses (i) to (v) of clause (viiia) of Section 2 are referred to in Section 27A. Section 27A deals with persons who indulge in financing, directly or indirectly, any of the aforesaid activities. It is relevant to note that the expression “illicit traffic” as defined in clause (viiia) of Section 2 includes financing, directly or indirectly, any of the activities mentioned in sub-clauses (i) to (v). Clause (viiia) of Section 2 reads as follows: B.A. No. 6332/2009 6 “2. Definitions:-- ....... (viiia) “illicit traffic”, in relation to narcotic drugs and psychotropic substances, means -- (i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or (v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv); B.A. No. 6332/2009 7 other than those permitted under this Act, or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder, and includes -- (1) financing, directly or indirectly, any of the aforementioned activities; (2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harbouring persons engaged in any of the aforementioned activities;” 18. Thus it is clear that in order to attract Section 27A, there must be an allegation of financing or harbouring as mentioned therein. There is no such allegation against the petitioner. Since no allegation of financing or harbouring is made, prima facie, I am of the view that Section 27A is not attracted and therefore the bar under Section 37(1)(b) would not be available in favour of the prosecution.” B.A. No. 6332/2009 8 7. The learned counsel for the petitioner submitted that even after the expiry of 60 days from the date of arrest, no complaint is filed in this case. Therefore, the petitioner is entitled to default bail under Section 167(2) of the Code of Criminal Procedure. 8. For the aforesaid reasons, I am of the view that the petitioner is entitled to be released on bail. 9. The petitioner shall be released on bail on his executing bond for Rs.50,000/- with two solvent sureties for the like amount to the satisfaction of the Sessions Court, Thiruvananthapuram, subject to the following conditions: A. The petitioner shall report before the Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram between 9 A.M. and 1 P.M. on alternate Mondays, till the final report is filed or until further orders; B. The petitioner shall surrender his passport, if any, before the Sessions Court, Thiruvananthapuram; C. The petitioner shall not leave the State of Kerala without prior permission from the Sessions Court, Thiruvananthapuram; D. The petitioner shall not try to influence the B.A. No. 6332/2009 9 prosecution witnesses or tamper with the evidence; E. The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; F. In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T. SANKARAN, JUDGE scm