IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Bail Appl..No. 6709 of 2009 CRIME NO.479 OF 2009 OF PERINTHALMANNA POLICE STATION, MLAPPURAM PETITIONER: 2ND ACCUSED: -------------------- ABDU @ ABDUL MAJEED, URAKAKOTTIL HOUSE, VELLILA P.O., U.K. PADI, MANGADA, MALAPPURAM DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT/ STATE: --------------- 1. THE SUB INSPECTOR OF POLICE, PERINTHALMANNA POLICE STATION. 2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6709 OF 2009 ------------------------------------------------------ Dated this the 16th day of November, 2009 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.479 of 2009 of Perinthalmanna Police Station, Malappuram. 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 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 B.A. NO. 6709 OF 2009 :: 2 :: the lorry. A quantity of 485 grams of Brown sugar was found in the possession of the first accused and a quantity of 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 B.A. NO. 6709 OF 2009 :: 3 :: 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 learned Public Prosecutor opposed the Bail Application. The learned counsel for the petitioner submits that the quantitative analysis of the contraband was not done and therefore the continued detention of the petitioner after 60 days of the date of arrest is not legal and proper. He relies on the decision in K. K. Ashraf Vs. State of Kerala (2009(4) KLT 399 = 2009(4) KHC 449). In that case, it was held as follows: 'In E.Micheal Raj's case, the Supreme Court considered the statement of objects and reasons concerning the Amendment Act of 2001 and also the rationalisation of sentence structure and providing strict bail provisions in respect of offenders who indulge in serious offences. In view of the judgment in E.Micheal Raj's case, the prosecution has to establish that the narcotic B.A. NO. 6709 OF 2009 :: 4 :: drug or psychotropic substance constitutes the commercial quantity in order to attract Section 21(c) of the Act. In the present case, though the sample was sent for quantitative analysis within few days of seizure, report is not obtained so far. This Bail Application was being adjourned on several occasions providing maximum time to the prosecution to make available the FSL report. Till now the report is not obtained. Therefore, there is no material before the court to come to the conclusion that the contraband involves commercial quantity. 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 B.A. NO. 6709 OF 2009 :: 5 :: 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. 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 B.A. NO. 6709 OF 2009 :: 6 :: 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.” 5. In view of the Judgment in K.K. Ashraf Vs. State of Kerala, I am of the view that the petitioner is entitled to get bail in the present case. 6. The petitioner shall be released on bail on his executing bond for Rs.50,000/- with two solvent sureties each for the like amount to the satisfaction of the Special Court (N.D.P.S. Act cases), Vadakara subject to the following conditions:- A) The petitioner shall appear before the Investigating Officer between 9 A.M. and 1 P.M. on all Mondays, till the final report is filed or until further orders; B.A. NO. 6709 OF 2009 :: 7 :: B) The petitioner shall surrender his passport, if any, before the Special Court (N.D.P.S Act cases), Vadakara. If the petitioner does not possess a passport, an affidavit to that effect shall be filed before the court. The surrender of the passport and the filing of the affidavit, as the case may be, shall be done within a period of one week after the release of the petitioner from the jail; C) The petitioner shall not leave the State of Kerala without prior permission from the Special Court (N.D.P.S Act cases), Vadakara; D) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; 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. (K.T.SANKARAN) Judge ahz/