Devine Mathew vs State Of Kerala

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

The petitioner is the accused in crime No.41/2020 of Excise Enforcement and Anti Narcotic Special Squad, Ernakulam. Above case is registered

against the petitioner alleging offence punishable under Sec.22(C), 20(b)(ii) A and 29 of the NDPS Act.

The prosecution case is that on 8.12.2020 at 7.45 pm, the petitioner was found in possession of 0.4171 gms of LSD stamps (25 nos.), 28.7501 gms

(100 nos.) MDMA and 20 gms of ganja at the office room of DTDC courier company, Paravur franchisee along with the 2nd accused in the crime in

violation of NDPS Act and Rules. It is alleged that the accused No.3 in the crime send the contraband item through courier from Goa and the 1st and

2nd accused received the same for the purpose of sale. The petitioner was arrested on 8.12.2020.

Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the petitioner has not committed any

offence. The counsel submitted that the petitioner is in custody from 8.12.2020 onwards. According to the counsel, the quantity seized from the

petitioner is not commercial quantity and this point is considered by this Court in Annexure-A2 order. The Public Prosecutor seriously opposed the bail

application. The Public Prosecutor submitted that the point raised by the petitioner is to be decided by the trial court and this Court may not release the

petitioner on bail at this stage.

It is true that the allegation against the petitioner is very serious. But the petitioner is in custody from 8.12.2020 onwards. In the bail application, a

specific contention is raised about the quantity of the contraband seized from the petitioner. Para 7 of the bail application is extracted hereunder:

Without prejudice to the contentions stated above, it is submitted that the contrabands allegedly seized will not go beyond intermediary quantity. Out

of the total contrabands seized, it is alleged that 28.7501 grams of MDMA pills and 0.4171 grams of LSD stamp were seized from the parcel which

came through courier and 20 grams of ganja was seized from the possession of the petitioner. As per item No.134 of the table in the NDPS Act, the

small quantity of MDMA is 0.5 gram and the commercial quantity is 10 gram. So it is alleged that 28.7501 grams of MDMA pills is commerial

quantity. The weight of the actual MDMA and the capsule shell which contained the MDMA were taken together while calculating the weight. It is

highly illegal. The MDMA seized was in the form of pills/capsules. The capsule shell is an outer skin in which medicinal substance is contained. The

capsule shells are made of gelatin and it dissolve in the mouth. Once the weight of capsule shell is separated, the actual weight of the MDMA can be

ascertained and if so, it will be below intermediary quantity. As per item No.133 of the table in the NDPS Act, the small quantity of LSD is 0.002

gram and the commercial quantity is 0.1 gram. It is alleged that 0.4171 gram of LSD stamp is commercial quantity. The weight of the actual LSD and

the papers containing dried LSD drops of LSD solution were taken together while calculating the weight. It is highly illegal. The LSD seized was in

the form of stamp and not in crystal form. If the weight of the papers is excluded, the actual weight of the LSD can be ascertained and if so, it will

come below the intermediary quantity.

The counsel relied on Annexure-A2 order of this Court in which this Court observed that it is an arguable point which is to be decided by the trial

court. The relevant portion of the order dated 8.3.2021 in BA No.1718/2021 is extracted hereunder :

The admitted case of the prosecution is that only a small quantity of ganja is seized from the possession of the petitioner. The only question to be

decided is whether the petitioner was in possession of commercial quantity of LSD stamp. The point raised by the counsel for the petitioner is that the

contraband article seized from the petitioner are really falling under the category of small quantity as the weight shown in the mahazar is 0.490 gms

which includes the weight of stamp. According to the counsel, it does not conclusively establish that the contraband is above the intermediary quantity.

The counsel also submitted that only a quantitative analysis can establish the real quantity of the contraband article. It is an admitted fact that final

report is filed in this case before the court below and now the matter is pending B.A.No.1718 of 2021 6 trial. Admittedly, the petitioner is in custody

from 19.2.2020 onwards. After going through the Judgment of the Bombay High Court, which I mentioned earlier, I think an arguable point is raised

by the petitioner. The Bombay High Court considered the decision in Hira Singh (supra) also. The relevant portion of the judgment of the Bombay

High Court is extracted hereunder:

“8. I have perused the First Information Report, Recovery Panchanamas and Chemical Analyser's report. At the outset, it may be stated that the

most common form of LSD is drop of LSD solution dried onto piece of paper or gelatin sheet, pieces of blotting papers which releases the drop when

swallowed/consumed. In this case, drug was found in the form of drops dried onto 23 pieces of papers. Thus, process of drying LSD solution on a

piece of paper, merely facilitates consumption of drug. This process neither changes the substance of the drug or its chemical composition. It is argued

by the State, that since dried LSD drops of LSD solution, cannot be segregated or separated from the papers, it amounts to a 'mixutre' and therefore

the weight of the paper is to be counted with 'LSD dots' for determining the quantity of drug which was more than 0.1 gram. The learned APP relies

on Entry-239 of the Table and Footnote-(4) appended thereto of the NDPS Act. Entry No.239 and Footnote-(4) reads as under:

Any mixture or preparation that of with or without a neutral material, of any of the above drugs.

Lesser of the Small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming

part of the mixture.

Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above

forming part of the mixture.

“4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture

or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts

of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.â€​

In my view, though after swallowing piece of paper, which causes release of drug but since that paper only carries drug and facilitates its

consumption, the paper with LSD drops, as a whole, is neither “preparationâ€, within the meaning of Section 2(xx), nor a “mixture†within the

meaning of the NDPS Act. So far as the judgment of the Hon'ble Apex Court in the case of Hira Singh (supra) is concerned, issue therein was,

whether mixture of narcotic drug or psychotropic substances with one or more neutral substances, quantity of neutral substances can be excluded

while determining the small or commercial quantity of narcotic drug and psychotropic substances. However herein, the papers containing dried LSD

drops of LSD solution, not being a mixture, and the paper being not a neutral substance, judgment of the Apex Court, has no application to the facts of

this case.

The learned Judge, as it appears from the impugned order, has accounted weight of papers “while calculating and determining quantity of the

LSD as a “commercial quantityâ€. In addition, while holding quantity of charas recovered from the applicant was 'commercial quantity', is equally

incorrect because charas allegedly recovered from the applicant was 970 gms i.e.less than 1 kg.

Thus in consideration of the facts of the case, the findings of the learned Judge that weight of the paper containing dried LSD drops of LSD

solution is required to be accounted while determining its quantity; whether small or otherwise is incorrect. In this case, the Chemical Analyser's

report, shows quantity of LSD drops solution was 0. 4128 milligrams, which was below 0.1 gm of commercial quantity. Therefore, rigors of Section 37

of the NDPS Act, are not applicable to the facts of this case.

Herein, the applicant has no criminal antecedents. He is in custody since June, 2019. Therefore, in the facts of the case, the applicant is admitted

to bail on following terms and conditions.:â€​

This is a bail application filed under Section 439 of the Cr.P.C I don't want to decide this question while considering this bail application because it

will affect the case of the prosecution itself. I leave open this question to be decided by the trial court. But considering the entire facts and

circumstances of the case and also considering the fact that the petitioner is in custody from 19.2.2020 onwards and the petitioner is aged only 19 at

the time of the offence and also considering the fact that there is no criminal antecedents against the petitioner, I think this bail application can be

allowed on stringent conditions.

I don’t want to make any observation about the merit of this case. The contention raised by the petitioner is to be decided by the trial court at

the appropriate stage. Considering the fact that the petitioner is in custody from 8.12.2020 onwards, I think the petitioner can be released on bail on

stringent conditions.

Moreover, the 2nd wave of COVID-19 is spreading in the country and the citizens are facing serious difficulties. In the state of Kerala, the 2nd

wave of the pandemic is creating lot of problems and even the day-to-day life of the citizens are affected. Everyday, about 25,000 people are tested

positive with COVID-19. In such circumstances, this Court has to consider this fact also while considering bail applications. The life is more important

than anything. Therefore, I am considering this bail application based on the above pandemic situation.

Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the

Hon'ble Supreme Court in Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this

Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons. These happened during the

1st wave of COVID-19 season.

Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v

Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail

remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing

fair trial.

Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed

with the following directions:

Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like

sum to the satisfaction of the jurisdictional Court.

The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the

investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to

dissuade him from disclosing such facts to the Court or to any police officer.

Petitioner shall not leave India without permission of the jurisdictional Court.

Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of

social distancing in the wake of Covid 19 pandemic.

If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is

granted by this Court.