IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 Bail Appl..No. 4099 of 2008() ------------------------------------ CRIME NO.2/2008 OF KUTTIPPURAM EXCISE RANGE PETITIONER/3RD ACCUSED :- ----------------------------------------- SAIDALAVI, S/O. KUNHIMUHAMMED, AYYAPPANTHARA, KOTTAPARAMBA, CHUKKANGAD, OTTAPPALAM. BY ADV. SRI.P.K.ANIL RESPONDENTS/COMPLAINANT/STATE :- --------------------------------------------------------- 1. THE EXCISE INSPECTOR, KUTTIPURAM EXCISE RANGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- B.A.No.4099 of 2008 ------------------------------------------- Dated this the 2nd day of July, 2008 ORDER This petition is for bail. 2. According to the prosecution, the police party was on patrol duty and engaged in detection of offence under NDPS Act. On the way, they found a Qualis Van parked by the side of the road. They went near to the van and found that the petitioner was sitting in the driver-seat and two others were on the rear seat. Sacks were also kept between the front and rear seats. On questioning them, it was revealed that the sacks contained ganja. Small packets of ganja were seized from the pockets of A2 and A3 also. Therefore, after compliance with Section 57 of the NDPS Act, a search was conducted in the van and the sacks were found to contain 4.2 kg. of ganja and on the body search of the first and the second accused, small packets of ganja were seen in their pockets. The articles and the car were seized and the petitioner and the other accused were arrested from the spot. The petitioner who is the third accused is in custody from 4.6.2008 onwards. BA No.4099/08 2 3. Learned counsel for the petitioner submitted that the search is under Section 42 of the NDPS Act and hence, a report should have been sent to the higher officials, but, there is no such compliance, which is mandatory. Learned public prosecutor pointed out, reading the mahazar, that the police had no previous information regarding possession of ganja by the accused or the availability of the ganja in the van. Therefore, Section 42 may not apply, it is submitted. 4. Learned counsel for the petitioner submitted that the petitioner is only a driver of the vehicle and he is not in conscious possession of ganja. Therefore, he is not liable for possession of ganja as alleged by the prosecution. 5. Learned public prosecutor opposed the bail application. He submitted that the source of the ganja has to be traced out and the person to whom the ganja was expected to be given has to ascertain on investigation. Hence, the release of the petitioner, at this stage, may adversely affect the investigation, it is submitted. 6. On hearing both sides, I am satisfied of the submissions made and in an offence of this nature, involving BA No.4099/08 3 more than 4.2 kg. of ganja, it may not be proper for granting bail to the petitioner at this stage. The petition is dismissed. K.HEMA, JUDGE csl