IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 Bail Appl..No. 3591 of 2010() ----------------------------- SC.278/2010 of D.C & SESSIONS COURT,TRIVANDRUM .................... PETITIONER/6TH ACCUSED ---------------------------------------- VENKATESAN @ VENKAT, S/O. BALASUBRAMANYAN, PALAYAM COTTAI, NELLAI DISTRICT, TAMIL NADU. BY ADV. SRI.G.SUDHEER SRI.B.KUMAR – SENIOR ADVOCATE FOR PETITIONER RESPONDENT(S): --------------- 1. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, REGIONAL INTELLIGENCE UNIT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. STANDING COUNSEL, NCB – SRI C.P. UDAYABHANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------- B.A No.3591 OF 2010 -------------------------------- Dated this the 16th day of August 2010 ORDER This petition is for bail. 2. The alleged offences are under Sections 21, 23r/w 27(A), 28 and 29 of Narcotic Drugs and Psychotropic Substances Act. According to prosecution, the officials of the Narcotic Control Bureau received information that first accused was in possession of huge quantity of heroine and he was planning to transport it to Srilanka through Tuticorin with the aid of petitioner (A6). They accordingly went to the place of occurrence on 08/04/1996 and found first accused in possession of 7 Kg. of heroine. First accused was arrested from the spot and seizure of the heroine was also effected. On interrogation, it was revealed that 7 more accused are involved in the crime. A charge sheet was laid against accused numbers 1 to 8 for the above said offences. 3. Learned counsel for petitioner submitted that the only material available against petitioner is a statement alleged to have been recorded from A1. But, the said confession statement is not admissible, as far as petitioner is concerned, because the case against the petitioner was split and trial against first accused was conducted and he was convicted. But, the trial against petitioner is still pending and the statement, if any, cannot be used against B.A No.3591 OF 2010 2 petitioner, it is strongly contented. There is nothing on record to connect petitioner with the crime, it is submitted. 4. It is also pointed out by petitioner's counsel that even if the statement given by first accused is accepted, it will not disclose identity of petitioner. It is only stated by first accused that one “Venkit of Tuticorin” is involved. But, petitioner's name is Venkitesan. Therefore, there is no incriminating evidence against petitioner. It is also submitted that no quantitative analysis was conducted in this case and this fact is revealed from the chemical analysis report produced before the court. It is specifically stated therein that the quantitative analysis is not done, since no facility was available in the laboratory. It is also suggested therein that if such quantitative analysis is required, the sample may be forwarded to the Chief Chemical Analyst at the Central Laboratory, New Delhi. 5. It is also submitted by petitioner's counsel that a quantitative analysis is crucial in a case of this nature, since depending upon the quantity of heroine involved, the punishment will vary. If there is no material to show that the quantity involved is commercial quantity, the quantity involved can be treated only as a small quantity and the benefit must go to the accused. Petitioner is in custody for the past about 9 months and the maximum period of imprisonment for possession of small quantity B.A No.3591 OF 2010 3 of the contraband article is only six months. In the above circumstances, petitioner may be granted the benefit and he may be released on bail, it is submitted. 6. Learned counsel for petitioner also relied upon E. Micheal Raj v Intelligence Officer, Narcotic Control Bureau (2008(5) SCC 161) and submitted that in the light of the dictum laid down by the Hon'ble Supreme Court in the said decision, petitioner may not be detained in prison for more than six months, since the maximum punishment for small quantity is only six months imprisonment. 7. Learned counsel for petitioner also submitted that the bar under Section 37 of the NDPS Act will not apply to this case, since the quantity of heroine involved in this case is not available in evidence. Even in the judgment convicting first accused, the quantity of Diacetyle Morphine is not mentioned. Therefore, it cannot be contented that the quantity involved is commercial quantity. It is also submitted that first accused was convicted in the year 2000 and at that time, the amendment of 2001 had not came into force, which differentiates commercial quantity, small quantity and intermediate quantity. But, as far as petitioner is concerned, the benefit of the Amendment Act will came to his favour, especially in the light of the dictum laid down in Micheal Raj's case. B.A No.3591 OF 2010 4 8. This petition is strongly opposed. Learned Public Prosecutor submitted that as far as the petitioner is concerned, heroine was not seized from petitioner's possession. But, petitioner is implicated for conspiring with first accused to commit the offence. Even at the time of proceeding to the spot for search and seizure, the officials had specific information that the article is being attempted to transported to Srilanka through Tuticorin with the aid of petitioner. Petitioner was absconding through out the investigation and he could not be arrested. The crime was detected as on 08/04/1996 and for the past more than 14 years, petitioner could not be arrested. 9. It is also submitted by learned Public Prosecutor that petitioner is a convict in a similar offence by the Court in Tamil Nadu and he had undergone imprisonment for a period of 8 years. Section 37 of the NDPS Act will apply, since offence under Section 29 is involved. Petitioner was undergoing imprisonment in one of the prisons in Tamil Nadu and his presence is procured through the court by production warrant. In case petitioner is released on bail, it is likely that he may abscond, it is submitted. It is also pointed out that first accused was convicted for a period of 15 years and the conviction and sentence are confirmed by this court. 10. On hearing both sides, I find that the crime was registered as early as on 08/04/1996, and the petitioner's presence B.A No.3591 OF 2010 5 for the trial could be procured only in the year 2009. Petitioner was not available for arrest during the investigation. Whatever benefit the petitioner is now harping upon is for the reason that the amendment act has come into force in the year 2001 and hence, the court will be guided by the amendment. This is made possible because petitioner was absconding for a period of about 14 years. If he had stood trial at the appropriate time, he could not have relied upon any benefit under the amendment act of 2001. In the above circumstances, I find that the argument placed on the quantitative analysis and the quantity involved etc. can be considered at the time of trial. 11. But petitioner was absconding for the past 14 years. He is also a convict in a case of similar nature. In such circumstances, it is likely that he may abscond, in which event, the trial is likely to protracted. Hence, I am not inclined to grant bail to petitioner at this stage. However, petitioner is at liberty to move the trial court for expeditious trial, in which event, the court shall consider the request and dispose of the case as early as possible. If there is any delay in disposal of the case, petitioner will be at liberty to file fresh application for bail before the trial court itself. But, I find no reason to grant bail to petitioner at this stage. Petition is dismissed. B.A No.3591 OF 2010 6 K.HEMA JUDGE vdv