MOHSIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as accused No.1 among the two accused in the instant Crime No.78/2019 of Excise Range Office, Palakkad, which has been registered for offences punishable under Sec.20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

(2.) The prosecution case in short is that when the respondent- Officer concerned and his Excise team were conducting a vehicle search at Palakkad, at about 7.50 a.m. on 24.07.2019, the respondent-Officer has seen A-1 coming out of a travel bus bearing registration No.KL-70A-5199 (SUPA Travel bus) and when the respondent entered into the bus for inspection, he had seen the two accused persons coming out of the bus with one bag each in their hands and upon suspicion, trolley bag of A-1 was searched first and certain amount of Ganja was seized. Then the trolley bag belonging to A-2 was also separately searched and another amount of Ganja was seized. It appears that the Ganjas seized from A-1 and A-2 had not been separately seized, according to the petitioner's version. After ascertaining that the contents of both the trolley bags are Ganja, the respondent-Officer has apprised accused Nos.1 and 2 about the right under Sec.50 of the NDPS Act and that the Excise Inspector, Sri.R.Balasubramaniam was brought to the place of occurrence and a personal search of both the accused persons were conducted and no contraband was found from the person of both the accused. Later, the contents of both the trolley bags were weighed and the weighing was done at three times dividing the contraband and total weight of the seized Ganja contraband has been found to be 22 kilograms, as stated in Annexure-A1, which is the certified copy of the seizure Mahazar dated 24.07.2019.

(3.) Smt.Anitha Mathai Muthirenthy, learned counsel appearing for the petitioner (A-1) would submit that her party (A-1) has nothing to do with A-2 and no independent evidentiary materials had been collected by the investigating agency headed by the respondent-Officer to even remotely establish that A-1 is connected by A-2, except that both were travelling in the same bus or that they were sitting in adjacent seats and further that if the Ganja seized from A-1 is separately is separately weighed, it is beyond any doubt that the same would come well below the lower limit of commercial quantity, which is 20 kilograms and upwards and therefore an offence under the NDPS Act for involving commercial quantity is not involved in this case and hence, the restriction in Sec.37 of the NDPS Act will not be a fetter to the claim of the petitioner for grant of bail. Further that, Annexure.A-1 seizure mahazar will show that the seizure is effected at 8p.m. on 24.07.2019. But that in Annexure.A-2 crime and occurrence report, it has been clearly recorded that the arrest of the petitioner (A-1) is at 7.50 a.m. That when the seizure of the alleged contraband is at 8p.m. on 24.07.2019, it is impossible to have the arrest made at 7.50 a.m. on 24.07.2019, which is previous to the seizure and that this itself would clearly show that the version of the prosecution lacks any credibility or believability. Thirdly, it is argued by the learned counsel for the petitioner that the only offence mentioned in the present crime/FIR is the one as per Sec.20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and in the absence of offence as per Sec.29 of the NDPS Act (relating to abetment and criminal conspiracy), the provision contained in Sec.37 of the NDPS Act will not come to the residue of the prosecution.