IQLAS Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused in crime 169 of 2021 of Nallalam police station in Kozhikode district, which was registered under Sec. 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the NDPS Act. The prosecution allegation is that on 5/5/2021 the Sub Inspector and party, Nallalam police station found the petitioners in possession of 12.050 grams of MDMA for the purpose of sale. After seizing the items from them under Annexure-A2 seizure mahazar, that crime was registered on 5/5/2021 and both the petitioners were taken into custody and since then they are in judicial custody. Their earlier application for bail was dismissed by this Court by Annexure-A4 order. Earlier they had moved an application under Sec. 439 of the Cr.P.C. before the Special Court (NDPS Act cases), Vadakara also, which was dismissed and thereafter they moved this Court with BA 5562 of 2021. By order dtd. 13/8/2021 that application was dismissed and now they have moved this Court again seeking bail.

(2.) I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.

(3.) According to the learned counsel, even though in the earlier order this Court found that they cannot be released on bail since the embargo under Sec. 37 of the NDPS Act is there holding that they had carried commercial quantity of ganja, it cannot be held that both had carried commercial quantity in their possession. Referring to Annexure-A2 seizure mahazar the learned counsel pointed out that only 8.250 grams of ganja was allegedly seized from the possession of the first petitioner and the second petitioner had possessed only 3.800 grams and if only both are taken together, it can be reckoned as commercial quantity for attracting Sec. 22(c) of the NDPS Act. According to the learned counsel, there is absolutely no reason to consider both the quantities together. In other words, if they are taken individually, both of them carried only intermediary quantity and therefore the embargo under Sec. 37 of the NDPS Act cannot justifiably be invoked against them. The learned counsel also submitted that there is absolutely no evidence to prove any conspiracy having hatched in the matter of carrying the alleged quantity merely for the reason that both of them were found together. In the absence of overwhelming evidence, conspiracy cannot be attributed and Sec. 29 of the NDPS Act cannot be invoked against the petitioners. He also pointed out that in the FIR also there is no allegation that they had committed conspiracy. Referring to the final report he submitted that the allegations against them on the conspiracy are rather fragile. Therefore, both of them are sought to be released on bail.