Allowed

Yadhukrishna v. State of Kerala

Kerala HC12 Apr 2019Bail Appl./133/2019

Case brief

AI extract

What is this about?

High Court allowed bail to a petitioner accused of possessing LSD and dry ganja under the NDPS Act. The court noted procedural errors in search-seizure records, absence of criminal antecedents, and the pending constitutional challenge to the computation of drug quantities, granting bail on conditions.

What did the court decide?

Bail granted on execution of bond of Rs. 75,000 with two sureties, appearing to I.O., surrendering passport, and not intimidating witnesses.

Yadhukrishna Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941

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Bail Appl..No. 133 of 2019

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AGAINST THE ORDER/JUDGMENT IN CRMC 1696/2018 of DISTRICT COURT & SESSIONS COURT,THRISSUR DATED 11-12-2018

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CRIME NO. 38/2018 OF Irinjalakuda Excise Range Office , Thrissur

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PETITIONER/S:

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YADHUKRISHNA AGED 24 YEARS

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S/O. SIVAKUMAR, VELIYATH HOUSE, EDATHIRINJI DESOM, EDATHIRINJI VILLAGE, THRISSUR DIST.

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BY ADV. SRI.VISHNUPRASAD NAIR

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-ERNAKULAM-682 031

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(CRIME NO. 38/2018 OF EXCISE RANGE OFFICE, IRINJALAKUDA)

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OTHER PRESENT:

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SNR PP C.N.PRABHAKARAN

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

BA No.133/2019

O R D E R

The petitioner is the sole accused in Crime No. 38/2018 of the Excise Range, Irinjalakuda, for offences punishable under section 22 (c) and 20(b) (ii)A of the NDPS Act.

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The allegation of the prosecution is that on 13/11/2018 at about 8.45 p.m., the accused was found in possession of 0.1gram of LSD stamps and 20 grams of dry ganja. After initial formalities, he was arrested and is in custody since 13/11/2018. He seeks bail.

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Learned counsel for the petitioner contended that, though he is charged with offence under section 22(c), the quantity recovered from his possession cannot be treated as one involving commercial quantity. It was contended by the learned counsel for the petitioner that, he was falsely implicated in the case and that he is absolutely innocent. It was also contended that he has no criminal antecedents.

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Contention of the learned counsel for the petitioner was that the Hon'ble Supreme Court in Micheal Raj v. Narcotic Central Bureau (2008 (5) SCC 161) had held that in the case of a mixture of pure drug with an inter mediary, pure drug contained in the seized material alone was to be reckoned for deciding whether it was a small quantity or commercial quantity. Though thereafter, by a notification inserted on 18/11/2009 the effect of Micheal Raj's case was taken away, the constitutionality of that case is under challenge and pending before the larger Bench of the Supreme Court. Hence it was contended Michael Raj's case should rule the field. It was contended that in this case, if the

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BA No.133/2019

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contraband was in the form of a mixture though on a medium, decision in Michael Raj's case should equally apply.

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Learned counsel for the petitioner relied on the decision of the Supreme Court reported in Hira Singh and Another v. Union of India and Another (2017 KHC 4861) , by which the impact of the above notification issued by the Central Government was referred to a three Judges Bench. Learned counsel further relied on the decision of the Madras High Court in M.Veludurain v .State (Laws(MAD) 2011 1234) and yet another decision of the Punjab and Haryana High Court in S atpal Singh v. State of Punjab ( AIR 2018 Supreme Court 2011), to support his contentions.

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In both the above decisions the identical question that arOse was whether in the case of preparation, pure drug is liable to be considered for the purpose of deciding whether offence related to commercial quantity or not. Both the decisionS took the view that Michael Raj's case hold the field.

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A Single Bench of this Court in Binu v . Union of India (2011 (4) KLT SN 14) had taken a contrary view that in the light of the notification total weight of the solvent should also be taken into consideration. Evidently, whether the decision equally applies in the case of medium, which is not in the form of solvent, is also liable to be considered.

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Learned counsel for the petitioner invited my attention to the materials on record regarding the search and seizure. It was contended by the learned counsel for the petitioner that several mistakes have been crept

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BA No.133/2019

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in the preparation of the mahzar and that they are casting serious doubts on the search and seizure. There is some substance in the contentions set up. It seems that, the investigation has progressed. Petitioner is in custody since the date of arrest.

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Having considered the above factual situation and duration of custody that petitioner has no criminal antecedents and not involved in any other crime , I am inclined to grant bail to the petitioner on the following conditions:

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(i). The petitioner shall execute a bond for a sum of Rs. 75,000/Rupees Seventy Five thousand only) with two sureties for the like sum each to the satisfaction of the jurisdictional Court.

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ii) He shall appear before the Investigating officer on all Saturdays between 9 am and 10 am for a period of two months from the date of his release.

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iii). He shall surrender his passport within one week from the execution of the bond and if he is not in possession of the passport, file an affidavit to that effect.

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(vi) He shall not threaten, coerce or intimidate the defacto complainant and witnesses.

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v). He shall not get involved in any other offence

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BA No.133/2019

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The bail application is allowed.

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Sd/-

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