IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Bail Appl..No. 5455 of 2008() ----------------------------- AGAINST THE ORDER DATED 28/07/2008 IN CRMP 2278/08 IN SC.925/2008 of D.C & SESSIONS COURT,TRIVANDRUM .................... PETITIONER/1ST ACCUSED: ------------------------------------------ AHAMMED ABDULLA, AGED 38 YEARS, S/O. ABDULLA, MALDIVAS NATIONAL, R/O.VILAYOMUI KASTHORRI MAGU, MALIDVES . BY ADV. SRI.G.SUDHEER RESPONDENT/COMPLAINANT: ---------------------------------------------- NARCOTIC CONTROL BUREAU, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, ERNAKULAM. SRI.C.P.UDAYABHANU, SC, NCB FOR R1 THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/09/2008 ALONG WITH BA NO. 5681 OF 2008 ,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K.HEMA, J. ------------------------------------------------- B.A.Nos.5455 & 5681 of 2008 ------------------------------------------------- Dated this the 29th day of September, 2008 O R D E R These petitions are for bail. 2. According to prosecution, the accused nos. 2 and 3 allegedly came in a motor bike and handed over the contraband article to the first accused and at that time, they were apprehended and article was seized. A total quantity of 400+ 365 gms. of heroine is involved in this case. Petitioner in B.A.No.5455/08 is accused no.1 and petitioner in B.A.No.5681/2008 is accused no.2 in the crime. 3. This petition is strongly opposed. Learned standing counsel for the respondent pointed out that the earlier application for bail filed by both these petitioners were dismissed by this Court only recently. It was observed in Annexure B order dated 10.7.2008 in B.A.No.4197/08 that the petitioner will be at liberty to move the trial court for expeditious disposal of the case. Charge sheet is laid and the respondent is ready to prosecute, if the trial commences at any time. But, bail may not BA No.5455 & 5681/08 2 be granted, considering the serious nature of the offence committed. The quantity involved is commercial quantity. First accused is a national of Mahi. Second accused is belong to Tamil Nadu and if bail is granted, they will not be available for trial, it is submitted. A3 is involved in another offence also, of similar nature. Even after granting of bail in the earlier case, he has committed this offence. As per the prosecution case, A2 and A3 were handing over the article to A1, when the respondent officials reached the place of occurrence. It is true that the respondent filed an application for chemical analysis, but, it is only for the purpose of ascertaining the quantity, for fixing the award to the officials of the respondent, who have detected the crime. 4. Learned counsel for the petitioners submitted that the petitioners are in custody since 22.10.2007. Nearly, one year is completed, since they are in custody. They are prepared to abide by any condition, as imposed by this Court. It is also submitted that in the light of the decision reported in E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008 SAR (Criminal) 339 Supreme Court unless quantitative BA No.5455 & 5681/08 3 analysis is done, it may not be possible to confirm the quantity involved in the offence. But, no quantitative analysis was conducted in this case and hence, it has to be presumed that the quantity involved is only small quantity, in the absence of any evidence with respect to quantity involved. It is also pointed out that there is no likelihood of disposal of this case in the near future, since the respondent has taken steps to get report of quantitative analysis done and sample is sent for analysis and the report is awaited. 5. Learned counsel for the second accused submitted that the second accused is in jail for nearby about one year in this case. There is absolutely nothing to connect the second accused with the crime except that he was present at the scene. He was not in possession of any contraband articles. No recovery has been effected from him. The mere presence of the second accused in the scene will not be sufficient to make out any offence under the NDPS Act, it is submitted. Considering these facts, the second accused may be granted bail, it is submitted. 6. On hearing both sides, It is clear that in the light of the decision cited above, unless there is report regarding the BA No.5455 & 5681/08 4 quantity involved, it will not be possible to find out whether the article constitutes commercial commercial quantity or not. The prosecution has taken only steps for quantitative analysis. 7. Having taken steps for quantitative analysis, it is only just and proper that result is awaited, but is to be borne in mind that it will be at the risk of the detention of petitioners. Delay caused by the respondent in taking steps for quantitative analysis. However, considering the serious nature of the allegations made and particularly the quantity involved, I do not find it fit to grant bail at this stage, especially since, report of quantitative analysis is awaited. 8. In the above circumstances, the following order is passed: (i) The Sessions Court, Thiruvananthapuram is directed to expedite the trial and also take all steps to get the chemical analysis report at the earliest, by issuing reminders or taking other earnest steps to get the report, considering the fact that the petitioners are in custody for the past about one year. (ii) It is also directed that if the result is received early, BA No.5455 & 5681/08 5 the case will be advanced and orders will be passed to expedite the trial. (iii) In case, there is any delay caused in scheduling the case, the petitioners will be at liberty to move this court again. With these directions, these petitions are dismissed. K.HEMA, JUDGE csl