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If the contraband is recovered from more than one accused then there cannot be artificial splitting of the quantities of the contraband for the purposes of determining whether the contraband was in commercial quantity and each of them will have to be considered as being in possession of the total quantity of contraband or not and same was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE GOPINATH P in the case of MOHAMMED SAFWAN vs. STATE OF KERALA (BAIL APPL. NO. 8788 OF 2021) on 5^th April, 2022.

Facts of the case are that while the Sub Inspector of Police, Vidyanagar Police Station and party were engaged in checking the vehicles, they found two youngsters approaching them on a scooter. On seeing the Police party, these youngsters attempted to turn the scooter around and flee from the place, the scooter overturned and the petitioner and the other accused ran away from the spot. However, they were intercepted and it was found that the packets they were carrying on the scooter contained Ganja, the total weight of which comes to 21 Kilograms.

Learned counsel for petitioner submitted that even according to the prosecution records, the contraband in question was packed in two different bags and the total quantity cannot be taken into consideration for the purposes of determining whether the contraband was in commercial quantities or not. He further submitted that since two different packets were recovered, the total quantity cannot be taken into consideration especially since Section 29 of the NDPS Act has not been invoked in the case. It is submitted that the provisions of Section 37 of the NDPS Act do not apply in the matter as the quantity of contraband recovered from the petitioner alone is not in commercial quantity.

Public prosecutor submitted that Section 29 of the NDPS Act needs to be invoked only if a conspiracy is alleged. In this case, both the accused were found in possession of contraband and for the purposes of determining whether the contraband was in commercial quantities or not, the provisions of Section 29 of the NDPS Act need not be invoked. He submitted that in cases like these where there is the recovery of contraband from the joint possession of two or more accused, each of them will have to be considered as being in possession of the total quantity of contraband and there cannot be any artificial splitting up of the quantities for the purposes of determining whether the contraband in question is in commercial quantities or not. He further submitted that the provisions of Section 37 of the NDPS Act clearly apply in this case and the petitioner is not entitled to bail.

Court held that even if no quantity of contraband was recovered from the possession of the petitioner, he cannot contend that he cannot be proceeded against under the provisions of the NDPS Act or that the provisions of Section 37 do not apply. Considering the fact that total quantity of contraband was split into different packets and was being held by the accused separately, it cannot be held that the offence of Section 20(b)(ii) (C) of the NDPS Act is not committed. Court dismissed the bail application.

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Judgment reviewed by – Amit Singh