Abhijithkumar vs State Of Kerala

Mohammed Nias C.P., J

This application is filed under Section 439 of the Code of Criminal Procedure, seeking regular bail.

The petitioner is the fifth accused in Crime No. 467/2022 of Walayar Police Station, Palakkad District, for having committed offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The allegation against the petitioner is that, on 16/10/2022, the Sub Inspector of Police, Walayar Police Station, while on patrolling duty along with the constables noticed the 1st accused herein standing near the toll plaza near Walayar along the Palakkad – Coimbatore NH 544 at 4.10 p.m., in the evening and on search of the bag the police officials seized a total quantity of 12.85 grams of MDMA from the possession of the 1st accused. A confession statement was recorded from the 1st accused. Thereafter, the crime was registered against the 1st accused, and he was charged with offence under Section 22 (c) of the NDPS Act.

The learned counsel appearing for the petitioner would say that the petitioner is totally innocent and falsely implicated with ulterior motives. At any rate, he points out that the petitioner has been in custody since 28/10/2022, and continued custody of the petitioner is unnecessary. The learned counsel for the petitioner further submits that there was no seizure from the petitioner, and he was roped in only on the basis of the confession of the 1st accused, which, according to him, is hit by the principles laid down by the Hon'ble Supreme Court in Tofan Singh vs. State of Tamil Nadu (Criminal Appeal No.152/2013). He also relies on the principle stated in Fasil vs. State of Kerala (Neutral Citation No.2023;KER; 232000) (B.A.No.3849/2022 dated 13/04/2023) to contend that long incarceration can be a ground to dilute the rigour of S.37 of the N.D.P.S Act if the other yardsticks mentioned in the said judgment are also considered. It is also submitted that the petitioner has no criminal antecedents.

Learned Public Prosecutor opposed the bail application. The investigation revealed that the second accused, with the help of the third accused, had purchased the contraband from A4 and A5 at Bangalore and entrusted the same to A1 for sale.

The first accused was already enlarged on bail by orders in Crl.M.C.No.5372/2023 dated 25.07.2023. The third accused was also released on bail by orders dated 11.9.2023 in BA No.6052/2023.

It is also to be seen that there was no seizure from the petitioner herein and it was on the basis of the confession of co-accused that the petitioner was implicated. In the light of the accusations against the petitioner more in the basis of the confession of the first accused, I find substantial force in the argument of the learned counsel for the petitioner that at this stage his involvement in offence has to be held as doubtful. Accordingly, his further incarceration is not required as the delay in the trial , the quantity involved and the fact that the FSL report has not been brought on record till date,has to be taken into account.

It is also relevant to note that there is no apprehension raised by the prosecution that, if released on bail, the petitioner is likely to abscond. No other criminal antecedents are reported against the petitioner. Therefore, in the light of the principles of law referred to above and in the facts and circumstances noticed above, I am inclined to grant bail,considering that the petitioner is detained since 10.11.2022. Accordingly, the bail application is allowed and it is ordered that the petitioner shall be released on bail on the following stringent conditions:

(i) The petitioner shall execute a bond for a sum of Rs.1,00,000/-(Rupees One Lakh only) with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court;

(ii) The petitioner shall appear before the investigating officer in Crime No.467/2022 of Walayar Police Station, Palakkad District, on all second Saturdays at 11.00 a.m. until completion of the trial;

(iii) The petitioner shall not leave the State of Kerala without . obtaining prior permission from the jurisdictional Court.

(iv) The petitioner shall surrender his passport before the jurisdictional Court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of his release on bail;

(v) The petitioner shall not attempt to interfere with the investigation or to influence any witness in the above said crime;

(vi) The petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.467/2022 of Walayar Police Station, may file an application before the jurisdictional court, for cancellation of bail.