Silamburaja v. The State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.04.2023

CORAM

THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA Silamburaja ... Petitioner Vs.

State Represented by The Inspector of Police Ulundurpet PEW Police Station, Kallakurichi District.

(Crime No.21 of 2023).

... Respondent PRAYER: Criminal Original Petition filed under Section 439 of Cr.P.C., pleased to enlarge the petitioner on bail in Crime No.21 of 2023 pending on the file of the respondent herein.

For Petitioner : Mr.M.Rajal For Respondent : Mr. C.E.Pratap Government Advocate (Crl. Side)

O R D E R

The petitioner, who was arrested and remanded to judicial custody on 10.02.2023, for the offences punishable under Sections 8(c) r/w 20(b) (ii)(B) of NDPS Act @ Sections 8(c) r/w 20(b) (ii) (C) and 29(1) of NDPS Act in Crime No.21 of 2023 on the file of the respondent police, seeks bail. 1/8

2. The case of the prosecution is that on 09.02.2023, based on a secret information, the respondent police intercepted a government bus and caught hold of the 1st accused namely Silamburaja/petitioner herein and on search, he was found in illegal possession of 10 kgs. of Ganja. Later based on the confession recorded from him, A2 to A4 were implicated in this case and 150 grams of Ganja was recovered from A2, 100 grams of Ganja was recovered from A3 and on 15.02.2023, 16 kgs. of Ganja was recovered A4. In total 26.250 kgs. of Ganja was recovered from all the 4 accused persons. Hence, case.

3. The learned counsel for the petitioner would submit that the petitioner is an innocent person and he has not committed any offence as alleged by the prosecution. Though as per the prosecution, the quantity of Ganja alleged to have been recovered from all the accused persons in total is stated to be commercial quantity, the contraband alleged to have been recovered from the petitioner on 09.02.2023 is only 10 kgs. which is an intermediate quantity. Later, based on the confession stated to have been recorded from the petitioner/A1, A2 and A3 were arrested on 10.02.2023 from whom only 150 grams and 100 grams of Ganja is stated to have been 2/8

recovered. Thereafter, much belatedly i.e. on 15.02.2023, A4 has been arrested from whom 16 kgs of Ganja is alleged to have been recovered. In such circumstances, the contrabands recovered separately, cannot be clubbed together and treated as commercial quantity and that there is no nexus between the petitioner and A4. He further submitted that the petitioner has been suffering incarceration from 10.02.2023 and he is ready to abide by any stringent conditions that may be imposed against him. He further submit that without prejudice to his rights and defence, the petitioner is ready to deposit a substantial amount to any charitable institution as may be directed by this Court. Hence, he prayed for grant of bail to the petitioner.

4. The learned Government Advocate (Criminal Side) for the respondent vehemently opposed to grant bail to the petitioner stating that the quantity of Ganja involved in this case is 26.250 kgs. On 09.02.2023, the petitioner was arrested along with 10 kgs. of Ganja and based on his confession, the other accused were arrested in which, A4 was arrested on 14.02.2023 from whom 16 kgs. of Ganja was recovered and subsequently, he was remanded to judicial custody on 15.02.2023. 3/8

5. The respondent has filed a detailed counter in which, the specif overt act of the accused persons are mentioned as follows; S.

No Name of the Accused Contraband seized Commercial/ Non Commercial NDPS Schedule No Chemical Report 1.

Silamburaja/A1 10 kgs of Ganja Intermediate quantity Obtained on 09.03.2023 vide Villupuram, Bo.Po.No.60 of 2023 dated 28.02.20223.

The sample are confirmed to be Ganja 2.

P.Senthilkumar/ A2 150 Grams Ganja Intermediate quantity 3.

T.Senthilkumar/ A3 100 Grams Ganja Intermediate quantity 4.

Babu Naidu/A4 kgs Ganja Intermediate quantity

6. Heard the learned Counsel for the petitioner and the learned Government Advocate (Crl. Side) and perused the materials available on record including the FIR and the counter filed by the respondent police.

7. As per record, the petitioner is stated to have been arrested on 09.02.2023 and from him only 10 kgs. of Ganja is alleged to have been recovered. Later, after 6 days, based on the confession recorded from the petitioner, A4 has been arrested on 15.02.2023 from whom, 16 kgs. of Ganja is alleged to have been recovered.

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8. In the opinion of this Court, both the contraband cannot be clubbed together and as per records, only 10 kgs. of Ganja has been recovered from the petitioner which is intermediate quantity and therefore, Section 37 of NDPS Act, will not applicable to the petitione and hence, the petitioner is entitled for bail.

9. Considering the above facts and circumstances of the case and the submissions made by the learned counsel on either side and also considering the period of incarceration undergone by the petitioner, this Court is inclined to grant of bail to the petitioner with certain conditions.

10. Accordingly, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.15,000/- (Rupees Fifteen Thousand Only) with two sureties, each for a like sum to the satisfaction of the Special Court for trial cases of NDPS Act, Villupuram, and on further conditions that:

[a] the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Magistrate may obtain a copy of their Aadhar card or Bank pass Book to ensure their identity;

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[b] the petitioner stay at Kallakurichi and report before the respondent police everyday at 10.30 a.m. until further orders;

[c] the petitioner shall not abscond either during investigation or trial;

[d] the petitioner shall not tamper with evidence or witness either during investigation or trial; [e] On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560]; [f] If the accused thereafter abscond, a fresh FIR can be registered under Section 229A IPC.

27.04.2023 ksa-2 6/8

To

1. The Special Court for Trial Cases of NDPS Act, Villupuram.

2. The Inspector of Police Ulundurpet PEW Police Station, Kallakurichi District.

3. The Central Prison, Cuddalore.

4. The Public Prosecutor, High Court of Madras.

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A.D.JAGADISH CHANDIRA,J., ksa-2 27.04.2023 8/8