IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 Bail Appl..No. 7436 of 2009() ----------------------------- CRMP.3282/2009 of D.C. & SESSIONS COURT,KOLLAM CRIME NO.1/2009 (NDPS) OF CHADAYAMANGALAM EXCISE RANGE, KOLLAM. .................... PETITIONER/2ND ACCUSED: ------------------------------------------ VINOD, (2) S/O.VIJAYA KUMAR, VINOD BHAVAN, VALIYODU P.O., MALIYIL WARD, VELIYAM VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, CHADAYAMANGALAM EXCISE RANGE, KOLLAM DISTRICT. SRI. AMJAD ALI, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 7436 of 2009 ---------------------------- Dated this the 15th day of January, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.2 in Crime No.1/2009 (NDPS) of Chadayamangalam Excise Range, Kollam. 2. The offence alleged against the petitioner is under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act. 3. The gist of the prosecution case is the following : On 18/9/2009, accused persons 1, 3 and 4 hired the autorickshaw of accused No.2 and transported a total quantity of 23 Kgs of ganja. The Excise party intercepted the vehicle. On seeing the Excise party, two persons ran away. One person abandoned a bag and ran away. The petitioner (accused No. 2) and accused No.3 were arrested on the spot. Accused No.4 was arrested subsequently. It is submitted that accused No.3 is not arrested so far. 4. As stated earlier, total quantity of ganja seized is B.A. No. 7436/2009 2 23 Kgs. The learned counsel for the petitioner relied on the decision in Muthu Kumar Vs. Station House Officer [2008(2)KLT 890(DB)] and contended that different quantities of ganja were being possessed by different accused and therefore, it cannot be held that a commercial quantity of ganja is involved in the case. In Muthu Kumar's case, different accused were found separately in possession of quantities of ganja lesser than the commercial quantity. In the present case, the facts are different. It has come out that accused Nos.1, 3 and 4 together went to Vijayawada and procured large quantity of ganja. They came back together. They sought the help of accused No.2, who owns the autorickshaw, to transport the ganja. Though, the Excise party found the contraband in different baggages, at present, I am not inclined to accept the contention of the learned counsel for the petitioner that no commercial quantity is involved. That is a matter for further examination and evidence. Going by the materials on record, it cannot be concluded that no commercial quantity is involved in the case. 5. The case of the petitioner stands on a different B.A. No. 7436/2009 3 footing. Apart from the fact that he was aware of the fact that ganja was being transported in the autorickshaw by accused persons 1, 3 and 4 and apart from 2 Kgs of ganja was found underneath the driver's seat of the autorickshaw, prima facie, it cannot be said that the petitioner was involved in the procurement, transportation and sale of ganja. Of course, at this point of time, the merits of the case cannot be decided. That is a matter for evidence at the time of trial and decision on the basis of the materials on record. Prima facie, for the purpose of disposing of this Bail Application, I am of the view that it cannot be said that the petitioner can be said to have transported a commercial quantity of ganja. 6. Though the learned Public Prosecutor has opposed the Bail Application, I do not think that Section 37(1)(b)(ii) of the Act would apply in so far as the petitioner is concerned and therefore, there is no bar in allowing the application, if otherwise the petitioner is entitled to get bail. The petitioner is in judicial custody since 19/9/2009. 7. Taking into account the facts and circumstances of the B.A. No. 7436/2009 4 case, the duration of the judicial custody undergone by the petitioner, the nature of the offence and the present stage of investigation, I am of the view that bail can be granted to the petitioner on stringent conditions. 8. The petitioner shall be released on bail on his executing bond for Rs.1,00,000/- with two solvent sureties each for the like amount to the satisfaction of the court of the Sessions Judge, Kollam subject to the following conditions:- A) The petitioner shall report before the Investigating Officer between 9 A.M. and 11 A.M. on all Mondays and Thursdays, till the final report is filed or until further orders. B) The petitioner shall appear before the Investigating Officer for interrogation as and when required. C) The petitioner shall surrender his passport, if any, before the Sessions court, Kollam within one week from today. If the petitioner does not hold an Indian Passport, an affidavit sworn to by him shall be filed before the Sessions court within one week. D) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence. B.A. No. 7436/2009 5 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. It is made clear that the observations made in this order are intended only for considering the request for granting bail and those observations shall not be treated as a finding on the merits of the case. The petitioner shall not be entitled to make use of this order for substantiating his defence, if any, at the time of trial or final arguments. K.T. SANKARAN, JUDGE scm