IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 Bail Appl..No. 5577 of 2009() ----------------------------- CRIME NO.479/2009 OF PERINTHALMANNA POLICE STATION, MALAPPURAM .................... PETITIONER/ACCUSED NO.5 ------------------------------------------- SHIBU.M.R., S/O.RAJAPPAN, MUTTATH KUNNEL HOUSE, KAVALAMUKKATTA, AMARAMBALAM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERINTHALMANNA POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.5577 of 2009 --------------------------------------------- Dated this the 9th day of October, 2009 ORDER This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.5 in Crime No.479 of 2009 of Perinthalmanna Police Station. 2. The offences alleged against the petitioner are under Sections 21(b)(ii)(C) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act. 3. The petitioner had filed B.A.No.4727 of 2009 before this Court which was disposed of by the order dated 16th September, 2009. For the sake of convenience, paragraphs 3 to 5 in the said order are extracted below: “3. The prosecution case is as follows: On 28/7/2009, the police got secret information that sale of Narcotic Drugs was being made in a lorry parked near the side of Perinthalmanna- Pandikad road. The police party reached the spot. Accused Nos.1 to 3 were found inside the lorry and accused Nos.4 and 5 were found outside the lorry. A quantity of 485 grams of Brown sugar was found in the possession of the first accused and a quantity of BA No.5577/2009 2 452 grams of Brown Sugar was found in the possession of the second accused. Accused Nos.3, 4 and 5 were having possession of one gram each of Brown Sugar. The accused persons were arrested on 28/7/2009. The investigation reveals that Brown Sugar was brought from Ujjain and it was intended for sale in Kerala. The packets containing one gram each found in the possession of accused Nos.3, 4 and 5 are sample packets. According to the prosecution, all the accused are involved in the offence in the same way and the offence against them is to be treated as offence involving commercial quantity. It is alleged that the first accused, Abdul Azeez, was convicted for an offence in Saudi Arabia and he was in jail in Jiddah for a period of about two years and he was later deported to India. The second accused Abdu @ Abdul Majeed was involved in a drug case and he was convicted and sentenced by a court in Bombay. The second accused was in jail for about five years. It is alleged that other accused are close associates of accused Nos.1 and 2 and all of them acted for the same object of the sale of large quantity of Brown Sugar. 4. The application for bail submitted by the petitioner was dismissed by the Special Judge (NDPS Act Cases) Vadakara by the order dated 3/8/2009. Section 37(1) (b)(ii) of the NDPS Act provides that where the Public Prosecutor opposes BA No.5577/2009 3 the Bail Application, in order to grant bail, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences alleged and that he is not likely to commit any offence while on bail. This Bail application is seriously opposed by the learned Public Prosecutor. 5. On a consideration of facts and circumstances of the case, it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the offence. It is also not possible to hold that the petitioner is not likely to commit any offence while on bail. For the aforesaid reasons, I am of the view that the petitioner is not entitled to the grant of bail at present.” 4. The learned counsel for the petitioner submitted that the petitioner cannot be said to have any complicity in the offence in respect of the large quantity and at best, it could be said that he was in possession of one gm. of brown sugar. 5. On a consideration of the various materials available in the case diary, prima facie, I am not inclined to accept the contention put forward by the petitioner. 6. The prosecution case is that the petitioner had prior information about the contraband being brought to the place and BA No.5577/2009 4 the method of dealing with the same. It is also alleged that the petitioner was aware of the fact that a sample pack would be given to him and he would have to find out the purchasers. According to the prosecution, the petitioner was also aware that he would get a good commission on sale of the contraband. 7. The mere fact that certain accused were in possession of a small quantity does not mean that under no circumstances an offence under Section 20(b)(ii)(C) could be attributed against them. Everything depends on the facts and circumstances of the particular case. If the accused concerned had the intention to deal with a commercial quantity of the contraband and in that process he proceeded further, indulged in the activity preceding the sale, a case under clause (C) for having dealt with commercial quantity could be attributed to that person even if he was in possession of only a small quantity. In the present case, the facts and circumstances would show that the petitioner was not only dealing with a small quantity of the brown sugar but, he was indulging in the activities with respect to a commercial quantity. 8. I do not think that there is any change of BA No.5577/2009 5 circumstances after passing of the order dated 16th September 2009. The Bail Application is still opposed by the learned Public Prosecutor. Therefore, the bar under Section 37(1)(b)(ii) of the NDPS Act would still be attracted. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE csl