Aadil S. Haneef vs State Of Kerala

A. Badharudeen, J

This is the third application for regular bail, filed under Section 439 of the Criminal Procedure Code, by the petitioner, who is the 2nd accused in Crime No.42/2023 of Kanjirappally Police Station, Kottayam, where the prosecution alleges commission of offences punishable under Section 22(c) & 20(b) (II)(A) and 29 of the Narcotic Drugs and Psycotropics Substances Act (`NDPS Act' for short).

Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary and report of the Investigating Officer, placed by the learned Public Prosecutor.

The prosecution case, initially, at the time of preparing the search list was that the 1st accused was found in possession of 300 ml of LSD stamp and 1 gram of Hashish at 8.10 p.m on 08.01.2023 and later when the contraband was weighed before the Magistrate, it was found that the LSD stamps recovered from the 1staccused (5 in numbers) would weigh 0.11 gram and the Hashis would come to 0.26 gram. In this crime, the specific allegation against the 2nd accused/petitioner is that he sold the contraband recovered in this crime to the 1st accused. The further allegation is that when search was conducted at room No.11 of Subramanya Arcade Lodge, Amala Nagar by SHO, Peramangalam Police Station, 10 gram of Hashish oil was seized from the possession of the 2nd accused and two others, for which Crime No.35/2023 of Peramangalam Police Station was registered alleging commission of offence punishable under Section 20(b)(II)(A) of the NDPS Act. This is the premise on which the prosecution alleges commission of the above offences by accused Nos.1 and 2.

Initially the same petitioner filed B.A.No.569/2023 and this Court dismissed the same as per order dated 28.02.2023 holding that commercial quantity of contraband was involved and, therefore, the petitioner could not be released on bail by diluting the rider under Section 37 of the NDPS Act. Again the petitioner filed B.A.No.2130/2023 and this Court dismissed the same as per order dated 24.05.2023, holding the same view.

It is submitted that the contraband seized from the possession of the 1st accused is 0.300 mg of LSD stamp and 0.1 gram of Hashis as per the search list. However, on investigation, final report was filed stating the weight of LSD stamp as 0.11 gram and the weight of Hashis as 0.26 gram. It is fairly conceded by the learned counsel for the petitioner that if the contraband is 0.11 gram, the same is commercial quantity and if the quantity, as initially noted, is 0.300 mg, the same is small quantity. According to the learned counsel for the petitioner, even though 0.300 mg (small quantity) of LSD stamp was seized in this crime, the prosecution enhanced quantity of LSD stamp to 0.11 gram, in order to justify registration of crime involving commercial quantity. Accordingly, it is argued that the petitioner is innocent and if at all any offence is made out, the same would come under Section 20(b)(II)A of the NDPS Act.

Strongly repelling these contentions, the learned Public Prosecutor categorically argued, relying on the recitals in the case diary, that when the 1st accused was arrested along with the contraband, the contraband was weighed in a balance made available, from a jwellery, and the weight of the LSD stamp was stated as 0.300 mg instead of 300 CT. But when the contraband was produced before the Magistrate, the same was weighed in the presence of Magistrate and it was found that the weight in gram in so far as LSD is concerned would come to 0.11 gram and the Hashis would come to 0.26 gram. Thus this fact was reported to the court and after investigation final report also was laid alleging that accused Nos.1 and 2 committed the above offences. Therefore, there is no reason to relax the rider under Section 37 of the NDPS Act and the petitioner is not liable to be released on bail.

On perusal of the case diary, the argument advanced by the learned Public Prosecutor is justifiable and there is no reason to hold at present that the contraband is small quantity and the same would attract offence under Section 20(b)(II)A of the NDPS Act. It is true that this Court dismissed the earlier applications at the instance of the petitioner holding that the rider under Section 37 of the NDPS could not be diluted. Now the petitioner has been in custody from 11.01.2023, ie. for the last 8 months, and final report also has been filed. The evidence as against the petitioner to be read out with the final report is the confession statement of the 1st accused, and the FSL report, yet to be obtained with regard to the mobile phone of the petitioner. In fact, nothing recovered from the conscious possession of the petitioner, though he has involvement in another crime, viz., Crime No.35/2023 of Peramangalam Police Station.

Having considered the fact that the petitioner was arraigned as the 2nd accused in this crime mainly relying on the confession statement of the 1st accused and final report also would suggest the same, taking note of his custody from 11.01.2023, I am inclined to release him on bail on the following conditions:

i. Petitioner/2nd accused shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned.

ii. Petitioner/2nd accused shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. He shall visit the Investigating Officer on every Monday in between 9 a.m and 12 noon for a period of two months and also appear before the Investigating Officer as and when directed.

iii. Petitioner/2nd accused shall not leave India without prior permission of the jurisdictional court.

iv. The petitioner/2nd accused shall surrender his passport, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter.

v. Petitioner/2nd accused shall not involve or indulge in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted.