Dismissed

Nahas v. State of Kerala

Kerala HC14 Sept 2020Bail Appl./3862/2020

Case brief

AI extract

What is this about?

This common order dismissed two bail applications filed under Section 22(c) of the NDPS Act. The High Court held that the Section 37 embargo continues until trial, noting no material to indicate innocence and no change of circumstances to warrant interference with prior bail denials.

What did the court decide?

Bail applications of the 2nd and 3rd accused dismissed; trial to continue expeditiously.

Nahas Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ASHOK MENON

¶4

MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942

¶5

Bail Appl..No.3862 OF 2020

¶6

CRIME NO.118/2020 OF Erattupettah Police Station , Kottayam

¶7

PETITIONER/S:

¶8

NAHAS AGED 23 YEARS SON OF NAZAR, MATTEL HOUSE, JILLAMIPADI BHAGAM, THEKKEKARA, ERATTUPETTA, KOTTAYAM, PIN - 686 121. 686121

¶9

BY ADVS. SRI.S.RAJEEV SRI.V.VINAY SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.K.ANAND (A-1921)

¶10

RESPONDENT/S:

¶11

STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 682031

¶12

OTHER PRESENT:

¶13

SANTHOSH PETER SR PP

¶14

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.09.2020 ALONG WITH BA NO.5352/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

B.A NOS.3862 & 5352 OF 2020 2

¶16

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶17

PRESENT

¶18

THE HONOURABLE MR. JUSTICE ASHOK MENON

¶19

MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942

¶20

Bail Appl..No.5352 OF 2020

¶21

CRIME NO.118/2020 OF Erattupettah Police Station , Kottayam

¶22

PETITIONER/S:

¶23

HUSSAIN AGED 23 YEARS THOMMANPARAMBIL HOUSE THEKKEKKARA KARA, ERATTUPETTA VILLAGE 686121

¶24

BY ADVS. SRI.E.VIJIN KARTHIK SRI.SUJESH MENON V.B.

¶25

RESPONDENT/S:

¶26

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031

¶27

R1 BY PUBLIC PROSECUTOR

¶28

OTHER PRESENT:

¶29

SANTHOSH PETER SR PP

¶30

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.09.2020 ALONG WITH BA NO.3862/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶31

B.A NOS.3862 & 5352 OF 2020 3

¶32

COMMON ORDER

¶33

Dated this the 14th day of September 2020

¶34

The applicant in B.A.No.3862 of 2020 is the 3^rd accused, while the applicant in B.A.No.5352 of 2020 is the 2^nd accused in Crime No.118/2020 of Erattupettah Police Station, Kottayam for having allegedly committed offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). This is the 2^nd application by the 3^rd accused, while the 2^nd accused has filed an application for bail for the 3^rd time.

¶35

2.The prosecution case, in brief, is thus:- On 31.01.2020, the applicants along with two other co-accused were travelling in a car bearing registration No. KL-7-Y-6886 and they were apprehended by the police and accused 3 and 4 fled away from there, while accused 1 and 2 were apprehended. On inspection of the car, it was found that 21 bottles containing 100ml of triprolidine hydrochloride and codeine phosphate and two strips containing a total of 12 tablets of nitrazepam tablets IP (Nitrosum 10) were

¶36

B.A NOS.3862 & 5352 OF 2020 4

¶37

concealed inside the panel of the car. The crime was registered. The 2^nd accused was apprehended on the very same day, while the 3^rd accused was subsequently apprehended on 24.04.2020.

¶38

The learned counsel appearing for the 2^nd accused would contend that as per the labels affixed on the cough syrup bottles, it can be seen that it is manufactured by the Cadila Pharmaceuticals and that the total contents of codeine which is a prohibited drug and a narcotic substance is only 10 mg for 100 gms, and therefore even if the ingredients in all the ten bottles are added up, it would come to only less than the small quantity of codeine and therefore the applicant cannot be held responsible for offence of having possessed commercial quantity of the drug attracting the embargo under Section 37 (1) (b) of the NDPS Act. It is also submitted by the learned counsel that at the most for want of prescription it is an offence punishable under Section 27 of the Drugs and Cosmetics Act, for which the provisions are not as stringent as for an offence under the NDPS Act. The applicant has been in custody since 31.01.2020 and it is not possible to complete the trial expeditiously and therefore he

¶39

B.A NOS.3862 & 5352 OF 2020 5

¶40

may be released on bail.

¶41

The learned counsel appearing for the 3^rd accused submits that the applicant is only a student and that he was not in conscious possession of the drug as the vehicle did not belong to him and he was just a traveller and moreover, he has been implicated solely on the basis of the confession statement given by the 1^st accused regarding the persons who had allegedly fled away from the scene of occurrence. He does not have any criminal antecedents and therefore he may be released on bail.

¶42

Heard the learned counsel appearing for the applicants and also the learned Public Prosecutor.

¶43

The learned Public Prosecutor submits that the contents of the cough syrup has to be taken in totality of the contents in the bottle and codeine phosphate alone cannot be isolated to calculate the total quantity of prohibited drugs involved. Moreover, it is also pointed out that the 2^nd accused has criminal antecedents and that he is involved in another offence under the COTPA and also under the JJ Act. Therefore, his application for bail cannot be considered and it was twice rejected by this court. There are no change of

¶44

B.A NOS.3862 & 5352 OF 2020 6

¶45

circumstances also.

¶46

As regards the 3^rd accused, the learned Public Prosecutor submits that, it is not solely on the basis of the confession statement that he has been implicated. It is also on the basis of the identification by the officers, who had apprehended accused 1 and 2. They had seen accused 3 and 4 fleeing away from the scene of occurrence and they are identified by them and therefore, the confession statement of the 1^st accused is corroborated by the police officers, who had apprehended accused 1 and 2. Considering the embargo under Section 37, the applicants cannot be released on bail at this stage. The final report has already been filed and there would not be much delay in proceeding with the trial, since most of the witnesses are official and they would not default in appearance and giving testimony in the case. It is also pointed out that the embargo under Section 37 would continue till the trial is over and there is no material to indicate that the applicants are innocent and are not guilty of having committed the offence.

¶47

The fact whether only a portion of the syrup is to be considered to calculate the contents of codeine which is a

¶48

B.A NOS.3862 & 5352 OF 2020 7

¶49

narcotic drug in the cough syrup is something which is to be decided by the trial court and the application for bail is not the forum for deciding such matters. I am therefore not inclined to go into those details and leave it for the trial court to decide regarding the quantity of the drugs involved. Prima facie , it appears that there was 100 mg of cough syrup, which contained codeine phosphate and it is only as

¶50

per the label that 10 mg is mentioned. A report of the analysis will also have to be considered by the court during the trial for arriving at a conclusion regarding quantity of the drug involved.

¶51

It is true that the the 2^nd accused is involved in another case, even though it may be a minor offence, nevertheless it is an antecedent, which would create an embargo while considering granting of bail because it indicates that he has propensity to commit similar offences.

¶52

The argument of the learned counsel for the 3^rd accused also cannot be considered at this stage because the applicant is involved in a very grave offence of being in possession of commercial quantity of narcotic drugs. It may be true that the main stay of the prosecution case is the

¶53

B.A NOS.3862 & 5352 OF 2020 8

¶54

confession statement allegedly given by the 1^st accused and the learned counsel has also pointed out that the 1^st accused has an axe to grind against him because of some monetary transaction between him and the 1^st accused. But all those matters are to be considered by the trial court and cannot be considered in this application for bail. Therefore, I am not inclined to go into those details also.

¶55

Considering the entire facts and circumstances of this case, I find that there are no change of circumstances, which warrants interference with the earlier decision taken by this Court denying bail to the applicants and therefore, the application for bails are dismissed. The trial court shall endeavour to dispose of the case as expeditiously as possible and in case the pandemic situation delays the trial indefinitely, at a later point the applicants can approach this Court again seeking bail on that ground of delay.

SD/-

ASHOK MENON

JUDGE

rmm

Nahas v. State of Kerala

Case brief

What is this about?

What did the court decide?

Nahas v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pushpa Vs State of Kerala

Sreekumar Vs State of Kerala

Kalesh.a.v Vs State of Kerala

Augustine v.a., Vs State of Kerala

Renjini T.V Vs State of Kerala

Hilda Sesil Vs State of Kerala