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2022 DIGILAW 800 (KER)

Surendran, S/o Ramamoorthy v. State Of Kerala

2022-09-22

VIJU ABRAHAM

body2022
ORDER : This is an application for regular bail. 2. The petitioner is the 5th accused in Crime No. 47/2021 registered under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. The prosecution case in brief is that, on 12.09.2021 at 8:15 am the accused were found in possession of and transporting 145.5 kgs of ganja in the bus bearing Reg.No. KL 40 H-452 Rao’s Travels Tourist Bus and the cars bearing Registration No. KL 07 CG 4567 Ertiga and KL 33 G 6670 Eon at the service road of Salem-Kanyakumari National Highway at Padinjare Yakkara, Kannadi II, Palakkad. The prosecution allegation against the petitioner is that he was a passenger in KL-33 G 6670 Eon Car from which 20.5 kg ganja was found. The petitioner was arrested by the Excise Enforcement and Anti Narcotic Special Squad on 12.09.2021 and produced before the jurisdictional court on that day and is in judicial custody since then. He has been in judicial custody for over 190 days. The petitioner had filed two bail applications before the District and Sessions Court - IV, Palakkad, both of which were rejected. 4. Petitioner submits that he has been falsely implicated in the abovesaid crime. The vehicles from which ganja was allegedly recovered are not in the ownership of the petitioner. The petitioner used to work with his father who is a piling contractor and they are working in different parts of Kerala and Karnataka and that on 12.09.2021 he had gone to Yakkara junction to arrange some power tools and to pick up a worker and it is on his way back he was taken into custody by the Excise Department from a tea shop near Yakkara Junction in Salem-Kanyakumari National Highway. Petitioner has no conscious possession of the alleged contraband and that there is no evidence to link the petitioner to the alleged crime and with regard to the alleged possession of seized ganja, except the confession statement of the co-accused, which is no longer valid in the eye of law in view of the judgment in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 . Petitioner also relied on the order in BLAPL No.9629 of 2021 of the Orissa High Court in this regard. Petitioner also relied on the order in BLAPL No.9629 of 2021 of the Orissa High Court in this regard. It is contented by the learned counsel for the petitioner that even going by the prosecution case the alleged seized ganja comprised of “leaves and stumps”. Petitioner relied on Section 2(iii)(b) of the NDPS Act which defines 'ganja' and contended on the basis of the same that the leaves and stumps will not fall under the definition of ganja and therefore rigor of Section 37 will not be attracted in the present case. In support of the contention, the learned counsel for the petitioner relied on the order in Misc. Criminal Case No.27153 of 2022 of the Madhya Pradesh High Court and Criminal Petition No.101982 of 2022 of Karnataka High Court. Petitioner has a further case that sampling was done in total violation of the standing orders issued by the Government in this regard and therefore the alleged seizure and sampling are bad in law. To substantiate the above contention, counsel for the petitioner relies on the judgments in Amani Fidel Chris v. Narcotics Control Bureau, 2020 SCC OnLine Del 2080; Noor Aga v. State of Punjab, (2008) 16 SCC 417 ; Union of India v. Mohanlal, (2016) 3 SCC 379 ; Gaunter Edwin Kircher v. State of Goa, (1993) 3 SCC 145 and also orders passed by the Madhya Pradesh High Court in MCRC No. 19405/2022, Telangana High Court in Crl. Pet. No. 4428/2022, Delhi High Court in B.A. No. 3076/2020, Allahabad High Court in Crl. Misc. Bail Application No. 18303/2020 and Criminal Misc. Bail Application No.19743 of 2020 to contend for the position that petitioner is entitled to bail when sampling was done in violation of the Standing Orders issued in this regard. It is also contended that the decision in Amani Fidel Chris's case supra was confirmed by the Apex Court in SLP (Crl) No. 5088/2020. 5. The application for bail is seriously opposed by the learned Public Prosecutor, who upon instructions submitted that a total quantity of 145.5 kgs of dried ganja was found to be transported in a tourist bus bearing No.KL 40 H 452, Ertiga car bearing No.KL 7 CG 4567 and Eon Car bearing No.KL 33 G 6670 and the petitioner along with other accused were arrested on the spot. Further investigation revealed that the alleged ganja transported was a consignment order of the 6th accused and thereafter the 6th accused was also arrested. As per the statement of the accused, the bus involved in the alleged crime was sold by the registered owner to the 1st accused herein. Petitioner was arrested while he was travelling in the Hyundai Eon car bearing no.KL 33 G 6670, from the dicky of which a sack containing ten packets covered in brown paper was found and when opened it was found that it was containing flower, leaf, seed and stump and on examination it was found to be ganja and the total quantity found in the Eon car was 20.500 kgs and in the Ertiga car 42.500 kgs was found and from the bus 82.5 kgs of ganja was seized. 20.500 kgs seized from the Eon car was transferred into a plastic cover and was sealed. Learned public prosecutor relies on judgment of the Apex Court in Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 ; Supdt., NCB Chennai, v. R. Paulsamy, (2000) 9 SCC 549 ; Union of India v. Ram Sumujh and another, (1999) 9 SCC 429 ; NCB v. Kishan Lal, (1991) 1 SCC 705 ; and also the judgments of the various High Courts in Bhim Nahak v. State of Orissa, 1991 SCC OnLine Ori 400; Dominic v. State of Kerala, 1989 KHC 143; Joseph v. State of Kerala, 1988 KHC 581; Sameer v. State of Kerala, 2021 (5) KHC 338 ; Chandran v. State of Kerala, 2008 (2) KLT 513 ; Mary v. State of Kerala, 2005 KHC 1204 to contend for the position that petitioner is not entitled to bail on the ground that sampling was not done in accordance with Standing Orders and that there is procedural violation. The learned Public Prosecutor also relies on the judgment in Shiv Kumar Mishra v. State of Goa through Home Secretary, 2009 KHC 292 . 6. Three contentions are raised by the petitioner. The first one is that he has been arrayed as an accused based on the confession statement of the co-accused which is totally inadmissible. The second contention raised by the petitioner is that the sampling was not done in accordance with the Standing Orders. 6. Three contentions are raised by the petitioner. The first one is that he has been arrayed as an accused based on the confession statement of the co-accused which is totally inadmissible. The second contention raised by the petitioner is that the sampling was not done in accordance with the Standing Orders. Yet another contention raised by the petitioner is that the contraband contains flower, seed, stump and leaf of ganja and leaf and stump cannot be considered as ganja going by the definition given in Section 2(iii)(b) of the NDPS Act and therefore the rigor of Section 37 will not apply. 7. As regards the contention based on Tofan Singh's case supra, it is seen that the contraband was seized from the car in which the petitioner was travelling and he was arrested at the spot. Therefore, the contention that the petitioner was arrayed as an accused based solely on the confession statement of a co-accused, prima facie, will not stand. 8. Now let me consider the contention of the petitioner in the light of the Standing Order and the judgments/orders relied on by him. The petitioner specifically refer to Clause 2.4 of Circular No.1/1989 under the head General Procedure for Sampling, Storage, etc. in support of his contentions. Clause 2.4 reads as follows:- In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. (underline supplied) 9. The petitioner relies on the judgment in Amani Fidel Chris’s case supra which has also referred to Circular No. 1/89 and held in the said case that drawing of sample neither confirmed to the procedure prescribed under Section 52-A of the NDPS Act nor under the Standing Orders and acquitted the accused therein. The specific contention in Amani Fidel Chris’s case supra is violation of the procedure prescribed under the Standing Order. Firstly, that is a decision in an appeal against conviction, and going through the judgment it is seen that acquittal was granted taking into consideration other aspects including non-examination of independent witnesses and further that though the prosecution alleged two different recoveries, the first recovery was disbelieved by the trial court. Firstly, that is a decision in an appeal against conviction, and going through the judgment it is seen that acquittal was granted taking into consideration other aspects including non-examination of independent witnesses and further that though the prosecution alleged two different recoveries, the first recovery was disbelieved by the trial court. Further, it is to be seen that relevant provision in the said Standing Order which is applicable to the facts of the present case is Clause 2.4 which only says that normally, it is advisable to draw one sample from each packet/container in case of seizure of more than one package/container and the learned Public Prosecutor contended that even by a mere reading of the said Clause, it does not appear to be made mandatory. Another important aspect to be considered is that even though the appeal against the said judgment was dismissed, the Apex Court has consciously left open the question of law and therefore, the judgment in Amani Fidel Chris’s case supra cannot be treated as final and conclusive. 10. Reliance is placed on Noor Aga’s case supra which is also an appeal against the order of conviction which was decided taking into consideration various other aspects. Essentially the question decided in that case is that the procedure taken by the Customs Department in destroying the case property was found to be irregular and it is in the said context it was said that the physical evidence being the property of the court should be disposed of strictly in accordance with the law. 11. Mohanlal’s case supra was dealing with a case where the court was considering a conflict between the statutory provisions governing taking of samples and the Standing Order issued by the Central government and the court only directed that the Central Government to re-examine the matter and take suitable steps so as to avoid confusion in the minds of the authorities while discharging their official duty and in the operative portion of the judgment it was has held that in the matter of seizure and sampling the court should comply with Section 52-A of the Act which mandates the sampling shall be done under the supervision of the learned Magistrate. I feel that the judgment did not consider the question that is mooted by the petitioner herein. 12. I feel that the judgment did not consider the question that is mooted by the petitioner herein. 12. Gaunter Edwin Kircher’s case supra heavily relied on by the counsel for the petitioner was also an appeal against conviction. In the said case, two cylindrical pieces of Charas having 7 gms and 5 gms respectively were seized and sample was taken only from the cylindrical piece having 5 gms and sent for chemical examination whereas no sample was taken from the cylindrical piece having 7 gms of Charas and the Apex Court held that as no sample was taken from one portion, it cannot be held that petitioner therein was in possession of 12 gms of Charas and can be punished only for having in possession of small quantity. I am of the opinion that the facts of the present case are not similar to that being considered in the said judgment. 13. Learned counsel for the petitioner also relied on orders of the various High Courts whereby bail was granted on the ground of taking samples in violation of the Standing Orders. Most of the orders were passed relying on the judgment in Noor Aga’s case supra, Gaunter Edwin Kircher’s case supra and Amani Fidel Chris's case supra. 14. Now let me consider the judgments relied on by the prosecution in support of their contention. The learned prosecutor relied on the judgment in Sumit Tomar’s case supra in which the Apex Court was considering the effect of taking samples after mixing the contraband and held that merely because different punishments have been prescribed depending on the quantity of the contraband, mixing of two bags will not cause any prejudice to the appellant therein and rejected the contention taken by the appellant therein that police should have taken two samples each from the two bags. He further relies on judgment in Chandran’s case supra, though one under the Abkari Act, which held that when several bottles were seized, it is not necessary that sample need be taken from each bottle. The learned public prosecutor further contended that the contraband being Ganja and the same was identified by the investigating officer who is well experienced; the contention of the petitioner that sample should be taken from each packet is not tenable. The learned public prosecutor further contended that the contraband being Ganja and the same was identified by the investigating officer who is well experienced; the contention of the petitioner that sample should be taken from each packet is not tenable. The learned public prosecutor relies on the judgment in Bhim Nahak case supra, Joseph’s case supra, Mary’s case supra and Dominic’s case supra and contended that the test of sight and smell by experienced public officers are acceptable. The learned public prosecutor further relies on the judgment in Sameer’s case supra wherein the contraband was identified by an Excise Official who is an expert and therefore held that the question as to whether the Excise Official who has identified the article is an expert or a competent authority cannot be looked into while considering a bail application and that can only be considered at the time of trial. Relying on the judgment in Paulsamy case supra it was contended that whether there was procedural irregularity etc. cannot be looked into at the time of grant of bail. Learned public prosecutor also relies on the judgment in Ram Samujh case supra to contend for the position that the specific reason for incorporating Section 37 of the NDPS Act was to avoid drug offenders being released on bail on technical grounds and therefore an accused in an NDPS case could be released on bail until and unless the mandatory conditions provided in Section 37 are satisfied. Prosecutor also relies on the judgment in Kishan Lal’s case supra and contended that bail can be granted only subject to the limitation contained in Section 37 of the NDPS Act. 15. It is seen that the judgment of the Apex Court in Sumit Tomar’s case supra was rendered subsequent to Gaunter Edwin Kircher’s case supra by a bench of co-equal strength which specifically considered a similar issue and rejected the contentions taken that the investigating agency should have taken two samples each from the two bags without mixing. The Apex Court was considering the effect of taking samples after mixing the contraband and held that merely because different punishments have been prescribed depending on the quantity of the contraband, mixing of two bags will not cause any prejudice to the appellant therein and rejected the contention taken by the appellant therein that police should have taken two samples each from the two bags. The Division Bench of this court in Chandran’s case supra, though in a matter arising out of the provisions in the Abkari Act, considered a similar question after referring to the judgment in Gaunter Edwin Kircher’s case supra held that checking of sample from one bottle will be enough to confirm the value of the articles in all the bottles and if large number of similarly labelled bottles purported to contain same type of article are seized, chemical examination can be done by taking one bottle or certain number of bottles selected at random. Though Amani Fidel Chris's case supra considered the issue regarding sampling, it was in an appeal filed against conviction. Further, though the SLP filed against the said judgment was dismissed by the Apex Court, the question of law decided in Amani Fidel Chris's case supra was left open. Further, prima facie I find considerable force in the contention taken by the learned Public Prosecutor that the Standing Order relied on by the petitioner in the matter of sampling, when various packets are seized, the circular only says that it is advisable to draw samples from each packet and therefore it cannot be considered as mandatory and violation if any cannot be looked into at the time of bail and could be raised only at the time of trial. I am not inclined to accept the contention of the petitioner based on the judgment in Gaunter Edwin Kircher’s case supra, Amani Fidel Chris's case supra and other orders of the various High Courts relied on by the petitioner especially in view of a judgment of the Supreme Court in Sumit Tomar’s case supra which was rendered subsequent to Gaunter Edwin Kircher’s case supra and also the judgment relied on by the public prosecutor in Chandran’s case supra. In Bhim Nahak case supra, Joseph’s case supra, Mary’s case supra and Dominic’s case supra the court has held that the test of sight and smell by experienced public officers are acceptable. Further in Sameer’s case supra, Paulsamy's case supra, and Ram Samujh case supra the court has held that procedural irregularity, etc, if any, cannot be looked into at the time of grant of bail. This position has been reiterated by the Apex Court in Union of India v Md. Further in Sameer’s case supra, Paulsamy's case supra, and Ram Samujh case supra the court has held that procedural irregularity, etc, if any, cannot be looked into at the time of grant of bail. This position has been reiterated by the Apex Court in Union of India v Md. Nawas Khan, 2021 (10) SCC 100 and held that when the issue is as to whether the procedure laid down under the NDPS Act is complied or not, the same cannot be looked into at the time of consideration of application for bail and can only be decided at the time of trial, as the same is a question of fact. At this point, this court cannot evaluate the evidence on record while exercising discretion under Section 439 Cr.PC. 16. Learned Public Prosecutor based on Shiv Kumar Mishra's case supra submitted that the contraband seized will come within the definition of ganja as defined in Section 2(iii)(b) of the NDPS Act for the reason that the seized ganja consists of leaf, flowery part, etc. inasmuch as going by the definition of expression “ganja” as per Section 2(iii)(b) of the Act would include the seeds and leaves of the cannabis plant since the seized ganja was accompanied by the flowery part of the plant. It is profitable to extract Section 2(iii)(b) of the Act, which reads as follows: “the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated” It is seen from the seizure mahazar that the contraband seized includes the flowery part and also the seeds and stumps and the leaves of ganja. So going by the definition of ganja, seeds and leaves which is accompanied by flowering of fruiting tops of the cannabis plant can be considered as part of the contraband. So going by the definition of ganja, seeds and leaves which is accompanied by flowering of fruiting tops of the cannabis plant can be considered as part of the contraband. The Apex Court had occasion to consider the same in Shiv Kumar Mishra's case supra, the relevant portion of which is extracted below: “The submissions made by learned counsel for the appellant are not convincing since from the evidence on record it has been established that the seized ganja consisted of a greenish brown colour leafy and flowery parts of the plant (in moist condition) which, in terms of the definition of the expression “Ganja”, would include the seeds and leaves of the cannabis plant since the seized Ganja was accompanied by the flowery parts of the plant. As far as exclusion of the moisture content of the seized Ganja is concerned, there is nothing in the NDPS Act to suggest that when the weight of a quantity of Ganja is to be ascertained, the moisture content has to be separately ascertained and excluded. On the other hand, we are of the view that the weight of the contraband would be the weight taken at the time of seizure.” (underline supplied) A similar view was taken by the Punjab and Haryana High Court in Rajbir and others v. State of Haryana, MANU/PH/1271/2021. Therefore, the contention of the petitioner that going by the definition in Section 2(iii)(b) of the Act the alleged contraband will not come under the definition of ganja, prima facie appears to be unacceptable. 17. It is also profitable to extract the observation of the Apex Court while considering the impact of Section 37 when deciding a bail application in Union of India v. Ram Samujh, (1999) 9 SCC 429 , which reads as follows: 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. 18. The offence alleged against the petitioner is very grave and serious in nature. Since the quantity involved is a commercial one, the rigor of Section 37 of the NDPS Act will come into play. Petitioner could not substantiate by cogent reasons that the twin conditions in Section 37 of the Act are satisfied so as to grant bail. 19. Taking into consideration the fact that the final report is already filed and the fact that the petitioner is in custody for a long, there will be a direction to the trial court to expedite the trial of the case. 20. It is also made clear that these prima facie observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits, during the trial. This bail application is accordingly dismissed.