IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Bail Appl..No. 6894 of 2009 AGAINST THE ORDER DATED 22/08/2009 INCRMP.161/2009 IN CR.2/09 OF SPL. COURT (NDPS ACT CASES), THODUPUZHA PETITIONER/ACCUSED -------------------------------------- RAVI,S/O.RAMAR,DOOR NO.23, THANDAL SURULLANDI STREET, MELE GUDALLOOR,THENI DISTRICT, TAMIL NADU. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6894 OF 2009 ------------------------------------------------------ Dated this the 3rd day of December, 2009 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the accused in C.R.No.2 of 2009 of Excise Enforcement and Anti Narcotic Special Squad, Idukki. 2. The offence alleged against the petitioner is under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecution case is that on 10.8.2009, the petitioner was found in possession of 1.30 Kgs of Charass. 4. The petitioner moved B.A.No.5263 of 2009 for regular bail. That Application was dismissed by the order dated 22.10.2009. 5. It is submitted that the commercial quantity of Charass would be one kilogram and above. In the present case, the total quantity is 1.30 Kgs. The quantitative analysis report is not received so far. B.A. NO. 6894 OF 2009 :: 2 :: 6. In Ashraf v. State of Kerala (2009 (4) KLT 399), it was held as follows: “13. Learned Public Prosecutor submitted that the requirement of proof that the content of the narcotic drug in the contraband constitutes commercial quantity arises only at the trial stage and it has no relevance while considering the Bail Application. I am not inclined to accept this contention in view of the specific provisions in the Act. In order to attract Section 21(c) of the Act, there must be material to show that commercial quantity is involved. Such material could normally be provided after a quantitative analysis is made. Of course, when the quantity involved is so large that even without any quantitative analysis it could be inferred that the contraband constitutes a commercial quantity, the position may be different. But in the present case, the quantity involved is only 500 grams. It cannot be inferred that the content of the narcotic drug in the contraband constitutes commercial quantity. That there occurs delay in getting the quantitative analysis report is not a ground to invoke sub-section (4) of Section 36A of the Act on the ground that the contraband involves commercial quantity. Unless there are materials to indicate that commercial quantity is involved, the court cannot apply sub-section (4) of Section 36A of the Act simply because an allegation is made without any material that commercial quantity is involved. B.A. NO. 6894 OF 2009 :: 3 :: 14. When the law is clear and it has been interpreted by the Supreme Court in E.Micheal Raj's case, it is not a consolation at all to the accused who has been incarcerated in jail that the report from FSL is not received. When the law provides severe punishment for drug trafficking and allied offences, there must be sufficient infrastructural facilities for implementing the Act and the provisions therein. The freedom of citizen cannot be denied only on the ground that we do not have the sufficient infrastructural facilities to prove before Court without delay that the contravention involves commercial quantity of the narcotic drug.” 7. Following the principles in Ashraf v. State of Kerala (2009 (4) KLT 399), the petitioner is entitled to be released on bail. 8. The petitioner shall be released on bail on his executing bond for Rs.50,000/- with two solvent sureties, who own immovable property in the State of Kerala, for the like amount to the satisfaction of the Special Judge for NDPS Act Cases, Thodupuzha, subject to the following conditions: a) The petitioner shall report before the investigating officer between 9 A.M. and 1 P.M. on all Mondays and Thursdays, till the final report is filed or until further orders; B.A. NO. 6894 OF 2009 :: 4 :: b) The petitioner shall surrender his passport, if any, before the Court of the Special Judge for NDPS Act Cases, Thodupuzha. If the petitioner does not possess a passport, an affidavit to that effect shall be filed; c) The petitioner shall not leave the State of Kerala without prior permission from the Court of the Special Judge for NDPS Act Cases, Thodupuzha; d) The petitioner shall appear before the investigating officer for interrogation as and when required; e) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; f) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; g) 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. The sureties shall produce title deeds in respect of their immovable properties for perusal by the Court of the Special Judge for NDPS Act Cases, Thodupuzha. (K.T.SANKARAN) Judge ahz/