The High Court of Kerala dismissed a bail application under NDPS Act for two accused carrying Ephedrine. The court held that Section 37(1)(b) does not apply to controlled substances but denied bail due to flight risk and likelihood of absconding to another country.
Bail application dismissed; accused directed to face trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934
Bail Appl..No. 5030 of 2012 ()
CRMP.761/2012 of D.C & SESSIONS COURT,TRIVANDRUM O.R. NO:DRI/TVM/2/NDPS/2012 OF DIRECTORATE OF REVENUE INTELLIGENCE, SUB UNIT, THIRUVANANTHAPURAM
ACCUSED(S)/ACCUSED 1 AND 3:
1. KARUTHAN PONNAIYA, AGED 35 YEARS 53D, THOPPIRANTHOTTI STREAT, TRICHY DISTRICT TAMIL NADU, PIN 620008.
2. VELUTHEVAR JAYACHANDRAN 1/29 A, NO.A43, MIDDLE ST. KARAIKENI, PERAIYUR TALUK, MADURAI RURAL TAMIL NADU, PIN 625702.
BY ADV. SRI.BIJU BALAKRISHNAN
COMPLAINANT(S)/COMPLAINANT:
SENIOR INTELLIGENCE OFFICER STATE OF KERALA DIRECTORATE OF REVENUE INTELLIGENCE, SUB UNIT THIRUVANANTHAPURAM. REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SPECIAL PROSECUTOR SRI.C.P.UDAYABHANU
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
JJJ
N.K. BALAKRISHNAN, J.
B.A. No: 5030 of 2012
Dated this the 1st day of August, 2012
O R D E R
Petitioners are A1 and A3 in O.R. No.
DRI/TVM/2/NDPS/2012 of Directorate of Revenue Intelligence, Sub Unit, Thiruvananthapuram. The offences alleged against the accused are under sections 9A r/w 25A, 27A, 28 and 29 of N.D.P.S. Act. Petitioners have been in custody from 05.04.2012 and hence this petition for bail. The final report was already filed in this case and it is pending as S.C. No:681/2012.
section 27A of the Act is not pressed into service now. It is further submitted that the main section of offence attracted in this case is section 25A of N.D.P.S. Act.
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over by Shanmugham mentioned above to the petitioners; it is alleged by the Prosecution. It could also be found that the accused persons carried the Ephedrine knowing fully well that carrying the same is an offence punishable under the N.D.P.S. Act.
“In this Act, unless the context
otherwise requires,-
'Controlled Substance' means any substance which the Central Government
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may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance;”
5. It is not disputed that Ephedrine is a controlled
substance. There is no categorization of small quantity or commercial quantity so far as it relates to controlled substances. As can be seen from the definition of commercial quantity in Section 2 (viia) of the Act it is clear that it applies only to narcotic drugs or psychotropic substances. Section 9A deals with the power to control and regulate controlled substances, which reads:
“(1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any
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narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein.
The contravention of orders made under section 9A is made punishable under section 25A. The punishment prescribed is rigorous imprisonment for a term which may extend to ten years and fine which may extend to one lakh
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rupees.
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so, the rigour mentioned in that provision should be satisfied in order to enable the accused person to obtain bail. This submission is strongly resisted by the learned counsel for the petitioner. Though the punishment prescribed under section 25A is imprisonment up to ten years and fine of Rs.1 lakh, section 25 A is not an offence which has been made mention of in section 37(1)(b) of the Act.
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the learned counsel for the petitioner has relied upon the decision of the Bombay High Court in Rafael Palafox Garcia V. Union of India and Another 2009 KHC 5335 .
In that case 290 Kg of Pseudo Ephedrine, which is a controlled substance was seized. It was held that the concept of 'commercial quantity' does not apply to 'controlled substances' as per section 37(1)(b) of the Act. As has been said earlier, section 37(1)(b) itself is clear that it applies only to offences under sections 19, 24, 27A and offences involving 'commercial quantity'. The concept of commercial quantity is alien to 'controlled substances' Therefore, there can be no doubt that section 37(1)(b) is not applicable to the facts of this case.
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petitioner is entitled to get bail. Section 37(2) makes it clear that the limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force, for the granting of bail. Therefore, it is manifest that even if the rigour under section 37(1)(b) is not applicable, the Court can refuse bail, if the Court is of the view that the accused persons are likely to flee or will become unavailable to put them to trial or if there are other circumstances justifying negation of bail. It is pointed out that the final report in this case was filed on 22.06.2012 and it is now pending before the Sessions Court as S.C. No: 681/2012. It is also pointed out that the petitioners are actually carriers or peddlers of the controlled substance and that, it was not carried by them innocuously without knowing the gravity of the offence. It is also pointed out that the petitioners are from Tamil Nadu and are
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persons having international connections and so once they are released on bail it would be practically impossible to secure their presence to put them to trial.
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of the accused to flee from justice and the likelihood of their indulging in commission of similar offences as alleged by the prosecution are also taken note of. Considering all these aspects, I am not inclined to grant bail to the accused, and hence this application is dismissed. The learned trial Judge is directed to try and dispose of the case at the earliest.
Sd/N.K. BALAKRISHNAN, JUDGE
//True Copy//
P.A. to Judge
jjj
3 issues framed by the court
Whether Section 37(1)(b) rigour applies to bail in offences under Section 25A of N.D.P.S. Act involving controlled substances.
Whether bail is maintainable when the accused is likely to flee the country given their international connections.
Whether special leave to grant bail should be denied in NDPS cases involving controlled substances even if commercial quantity is not involved.
Colour shows how this judgement treated each authority
Rizwan Ahmed V. Directorate of Revenue IntelligenceReferred¶48
Rizwan Ahmed V. Directorate of Revenue Intelligence unreported decision dated 29.03.2012
Rafael Palafox Garcia V. Union of India and AnotherFollowed¶55
Rafael Palafox Garcia V. Union of India and Another 2009 KHC 5335
3 provisions across 1 enactments
Karthu Ponnaiya and Veluthevar Jayachandran
State of Kerala
N.K. Balakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
