YETHUL T Vs. STATE OF KERALA

JUDGEMENT

(1.) The aforecaptioned application has been instituted under Sec.439 of the Code of Criminal Procedure (Cr.P.C), seeking for regular bail, in regard to the involvement of the sole applicant herein, as accused No.2, in the instant Crime No.34/2021 of Kannur Excise Range Office, which has been registered for offences punishable under Sec.22(c) read with Sec.29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" or as "the Act", for short).

(2.) The gist of the prosecution case in the above crime is that on 15/12/2021 at about 7.25 PM, the two accused persons in this case were found in possession of 0.1586 grams of LSD, transported in a scooter, bearing registration No.KL 13 AJ 2850, at Payyambalam, near the office of the Postal Superintendent, Kannur. The specific allegation is to the effect that, on seeing the Excise party, A-1 handed over some articles to the applicant herein (A-2) and he had put it in his pocket and on suspicion, search was conducted and LSD was found in possession of A-2. The applicant was arrested on 15/12/2021 and has thereafter been remanded to judicial custody. A-1 had filed Crl. Miscellaneous Petition No.14/2022 and the applicant herein (A-2) had filed Crl.Miscellaneous Petition No.23/2022 before the Court of Sessions Judge (NDPS Act cases), Vadakara, Kozhikode District, seeking for regular bail under Sec.439 of the Cr.P.C. Since it was found that the alleged contraband of LSD was having a total weight of 0.1586 gm., and as the said weight of the contraband would fall within the notified commercial quantity limits, bail pleas were rejected in view of the restrictions contained in Sec.37 of the NDPS Act.

(3.) In this bail application, the prosecution has pointed out that it has already been categorically held by a Three-Judge Bench of the Apex Court, in the celebrated case in Hira Singh & anr. v. UOI & anr., [(2020) 20 SCC 272] that, while determining as to whether the weight of the alleged contraband would fall within "small quantity", "intermediate quantity" or "commercial quantity", as envisaged in the notification S.O No.1055 (D) dtd. 19/10/2001, as amended from time to time, issued under the above Act, the weight of not only the pure drug quantity, but also that of the neutral substance should be taken into account for determining as to whether the weight of the contraband would come within "small quantity" or "commercial quantity", etc., as the case may be.