Vaishnav vs State Of Kerala

Gopinath P., J

The petitioner is the 1st accused in Crime No.1542/2021 of Town East Police Station, Thrissur alleging commission of offences under Sections 22(C), 27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short).

The case of the prosecution, in brief, is that on 07-08-2021 at 4.30 p.m the petitioner was found in possession of 72 grams of MDMA near the Kokkala Railway Station, Thrissur. It is alleged that the petitioner had kept the said quantity for the purposes of sale. The earlier bail application of the petitioner was rejected by me through order dated 07-02-2022 in B.A. No.9874/2021.

The learned counsel appearing for the petitioner would submit that a final report has been filed and the same is pending as S.C 1136/2021 on the file of the Additional District and Sessions Court-IV, Thrissur. It is submitted that the said report is an incomplete report and same does not contain the analysis certificate of the forensic science laboratory. It is submitted that the petitioner is therefore entitled to bail in terms of the judgment of this court in Sameer v. State of Kerala; 2021 (5) KHC 338, where this court had taken the view that where a final report is filed without an analysis report the accused may be entitled to statutory bail notwithstanding the filing of the final report.

The learned Senior Public Prosecutor would vehementally opposes the grant of bail. It is submitted that this court had in Muhammed Shabeeb Mon P v. State of Kerala (order dated 01-09-2022 in B.A. No.2681/2022) had, after considering the decision in Sameer (supra), held as under:-

“6. Then, the only other question is whether the petitioner is entitled to statutory bail in the light of the fact that the final report in this case was filed without a copy of the FSL report. The argument of the learned counsel for the petitioner with reference to the law laid down by this Court in Sameer (supra) must necessarily fail. In Sameer (supra) this Court took the view that where the entire prosecution case depends on the analysis report and the final report is filed without the analysis report, the accused may be entitled to statutory bail notwithstanding the filing of the final report. However, it is clear from a reading of Sameer (supra) that each case has to be decided with reference to the facts obtaining in them and there is no absolute rule that non-filing of the analysis report along with final report should be treated as a case of non-filing of the final report entitling the accused to statutory bail. The law laid down by the Supreme Court in Serious Fraud Investigation Office (supra) clearly establishes that the crucial aspect is whether a final report has been filed following investigation. The findings of the Supreme Court in that case which have been extracted above when read along with the law laid down by the Supreme Court in Dinesh Dalmia (supra) clearly leads me to conclude that non-filing of the analysis report along with final report does not entitle the petitioner to seek statutory bail. Further it is clear from the judgment of the Supreme Court in R.S. Pai (supra) that there is no bar in terms of Section 173 of Cr.P.C. to file additional documents after the charge sheet is submitted. In the facts of the present case, following filing of the final report, an analysis report has been received from the Forensic Science Laboratory, which indicates that the substance seized is not MDMA as originally alleged. However nothing turn on this fact, as the substance which turns out to be Methamphetamine is still in commercial quantities. For all these reasons, I hold that the petitioner is not entitled to statutory bail merely on account of the fact that the final report filed in this case was so filed without the chemical analysis report. The bail application will stand dismissed.”

I am of the view that the petitioner is not entitled to bail in the light of the findings in order dated 01-09-2022 in B.A. No.2681/2022. The other contentions taken by the learned counsel for the petitioner including the fact that the other accused have not been apprehend and the contention that the petitioner has been in custody for long are not considerations that should weigh with this court in a case involving commercial quantities of a narcotic drug. The provisions of Section 37 of the NDPS Act are strict and the twin conditions in that section must be cumulatively satisfied. In the facts and circumstances of the case I have no reason to hold that any of the conditions prescribed in Section 37 of the NDPS Act have been satisfied in this case. The bail application is therefore dismissed.