Arya Chelatt vs State Of Kerala

K.Haripal, J

This is an application filed under Section 439 of Cr.P.C. by the third accused in Crime 91/2021 of Ernakulam Central Police Station. The crime is

registered alleging offence punishable under Section 20(b)(ii)(C) and 22(c) and 29 of the NDPS Act.

The alleged crime was detected at 8.30 pm on 30.01.2021. The prosecution alleges that at 8.30 pm, the officials of Ernakulam Town Central Police

Station searched the apartment of the first accused, apartment on the 2nd floor Thottakkattu Residency situated in Kunnappally lane at Nettippadam

road, and seized 44.56 grams of MDMA, 1286.51 grams of hashish oil and 340 grams of ganja from the room occupied by the first accused whereas

01.93 grams of hashish oil was seized from the possession of the second accused and 01.88 grams of hashish oil from the purse of the petitioner/third

accused.

The petitioner was arrested for the case on 30.01.2021 and since then she is in judicial custody.

Now the petitioner, 3rd accused seeks for bail.

According to Sri.K.V.Sohan, the learned counsel for the petitioner, she is a third year law student of SN College, Poothotta, she hails from rural

background. If at all, it is admitted that she had been staying in the said apartment, that was part of her avocation in modelling, that she had no

connection whatsoever with the illegal activities.

Relaying on the decision reported in Muthu Kumar and Others v. Station House Officer (2008 (2) KHC 592), the learned counsel submitted that the

total quantity of contraband involved is commercial quantity. But the petitioner was carrying only 1.88 grams of hashish oil, she cannot be roped in for

the entire quantity of items seized from the other accused; even admitting that she had carried so much quantity of hashish oil, separate quantity

allegedly seized from the purse of the petitioner alone can be reckoned, which is a small quantity and therefore, she is entitled to be released on bail,

having regard to the fact that she is in judicial custody from 30.1.2021 onwards. The learned counsel also sought the indulgence of the Court;

petitioner is a young girl, her hapless mother is distressed by the incarceration of her daughter.

On the other hand, the learned Public Prosecutor Smt.Sreeja V has strongly opposed the application. According to her, eventhough only 1.88 grams

of hashish oil was seized from her individual possession, there are materials to think that she was moving along with the other two accused persons

and therefore, she is also responsible for possessing the total quantity of contraband seized from the apartment. The learned Public Prosecutor also

pointed out that here, Section 29 of the NDPS Act also is alleged against the petitioner and the other accused persons.

I have summoned and perused the case diary in respect of Crime No.91/2021 of Ernakulam Central Police Station. It is true that charge sheet has

already been laid on 31.03.2021 but all the same, having regard to the nature of the offence, seriousness of the allegations raised against the accused

persons and also the role of the petitioner, I feel that the petitioner is not entitled to be released under Section 439 Cr.P.C.. At the outset, it must be

stated, as rightly pointed out by the learned Public Prosecutor, that the decision in Muthu Kumar (Supra) cannot salvage the situation, where the

Division Bench of this Court was considering a case in which offence under Section 20(b)(ii)C of the NDPS Act was alleged against three persons

for allegedly carrying 31.150 kg of Ganja. On the facts of the case, there were reasons to believe that the three accused persons had carried separate

quantity of the item, that is, 15 kgs and 50 grams by the first person in his hands, the second person had carried 6 kgs in a bag held by him and the

third person had carried 5 kgs in a suitcase. In other words, the prosecution was not entitled to take the aggregate into consideration for the purpose of

raising joint and several liability for the purpose of invoking the embargo under Section 37 of the NDPS Act and to deny them bail. But in the present

case, there are numerous reasons to think that the petitioner is not entitled to get the benefit of the dictum in that decision.

It is not disputed that the total quantity of narcotic drugs seized by the police on 30.01.2021 from the said apartment is commercial quantity. Now,

the question is whether the petitioner is also liable for the entire quantity of drugs seized from the apartment or whether she had carried only 1.88

grams of hashish oil.

It is evident that only 1.88 grams of hashish oil was seized from the immediate possession of the petitioner from the purse where her mobile phone

was also kept. But there are numerous circumstances to say that she was moving in close collaboration with the other accused persons and that she

had active roles in the possession of the entire quantity of drugs seized from the apartment. Firstly, when the police party had reached there at 8.30

pm, they had seen the petitioner in the company of the other accused; to be more specific, she was found with the second accused, one Ajmal Rasaq,

sitting on a cot in the room on the immediate southern side of the hall. There are reasons to think that both the petitioner and the said Ajmal Rasaq

were living together; the police party found them inside the room on their arrival. Whatever it may be, when that room was searched, certain quantity

of narcotic drugs were found in that room also. Moreover, two weighing balance machines were also found kept in the room. These circumstances

are sufficient to infer, at least for the present that the petitioner and others were dealing with narcotic drugs. Secondly, unlike in the case of Muthu

Kumar (Supra), here Section 29 of the NDPS Act also is alleged against the petitioner and the others. It is stated that she was moving in active

collaboration with the other accused persons, that it is after hatching a conspiracy that so much quantity of narcotic drugs was arranged there, as

found by the police.

It may be true that the petitioner is a law student but her presence at the time when the police party had reached the place of occurrence is quite

suspicious. It is stated that she was engaged in modelling and such other activities and she had reached there for that purpose. But it is a fact that 1.88

grams of hashish oil was seized from her immediate possession. Offensive articles were found kept in the room occupied by her and also in the

neighbouring room. The said apartment was taken on lease by the first accused. After perusing the case diary, there are reasons to think that the

petitioner is moving in close association with the other accused persons. Therefore, the embargo under Section 37 of the Act is very much attracted.

Here, the learned Public Prosecutor, as already stated, has strongly opposed the application. Having gone through the records, I have also reasons to

think that there are prima facie materials to rope in the petitioner for the entire quantity of drugs seized from the apartment. For these reasons, this is

not a fit case for granting bail to the petitioner.

The application is liable to be dismissed and is dismissed.