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 was initially registered for offences punishable under Sec.20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. After the progress of investigation, now the offence as per Sec.29 of the NDPS Act has also been added in the instant case.

(2.) The prosecution case in short appears to be that, when the respondent officer concerned and his excise team were conducting a vehicle search at Valayar Check Post, Palakkad at about 7.50 pm on 24.7.2019, the respondent officer had seen the petitioner (A1) coming out of a travel bus bearing registration No.KL-70A-5199 (SUPA Travels bus) and when the respondent entered into the bus for inspection, he had seen two accused persons coming out of the bus with one bag each in their hands and upon suspicion, trolley bag of A1 was searched first and certain amount of Ganja was seized. Then the trolley bag belonging to A2 was separately searched and another amount of Ganja was seized from him. It is the admitted case of prosecution, that the Ganjas seized from A1 and A2 have not been separately measured and seized. The said contraband materials (Ganjas) seized both from A1 and A2 have been weighed together, which comes to 22 kilograms, which fulfils the norm for commercial quantity. Further that, the respondent officer had then apprised accused Nos.1 and 2 about the right under Sec.50 of the NDPS Act, and the Excise Inspector Sri.R.Balasubramanyam was brought to the place of occurrence and personal search of both the accused persons was conducted and no contraband was found from the person of both the accused. As mentioned herein above, the total weight of seized Ganja contraband seized from A1 and A2 together comes to 22 kilograms as stated in Anx.A1 seizure mahazar dated 24.7.2019.

(3.) Smt.Anitha Mathai Muthirenthy, learned counsel appearing for the petitioner herein (A1) would submit that her party (A1) has nothing to do with A2 and no independent evidentiary materials have been in any manner collected by the investigating agency headed by the respondent officer to even remotely establish that her party (A1) is in any manner connected to A2 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 the petitioner herein (A1) were separately weighed, then the same would have come well below the lower limit of commercial quantity, which is 20 kilograms and upwards, and therefore the offence under the NDPS Act involving commercial quantity is not involved in the case as against the petitioner herein (A1), and hence the statutory restriction in the grant of bail as envisaged in Sec.37 of the NDPS Act will not in any manner the claim of petitioner for grant of bail.