Afsal Muhammed vs State Of Kerala

Mohammed Nias C.P, J

This application is filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.

The petitioner is the third accused in Crime No. 36/2021 of Excise Range Office, Ernakulam, for having allegedly committed offences punishable under Sections 22(C), 25, 27 and 29 of the Narcotic Drugs and Psychotropic Substance Act.

The prosecution case is that, on 19/08/2021 at about 1.40 A.M, the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, acting on information, conducted a search in Marhaba Apartment, Vazhakala at Eranakulam and seized 83.896 grams of MDMA illegally kept for sale in an apartment in the 1st floor of C block and arrested accused No.1 to 5. Later, upon further investigation role of the other accused persons was revealed and subsequently, all others were arrested.

The learned counsel appearing for the petitioners 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 19/08/2021, and continued custody of the petitioner is unnecessary.

The learned Public Prosecutor opposed the application.

However, learned counsel for the petitioner submits that it is connected to the very same incident and that no other antecedents are reported against the petitioner. He also relies on the judgments of the Supreme Court in Dheeraj Kumar Shukla v. State of Uttar Pradesh (SLP Criminal No.6690/2022) and MD Raja and another v. State of West Bengal (SLP Criminal No.6690/2022) and of this Court in Banash Basheer v. State of Kerala (B.A.No.5370/2023), Siddarth v. State of Kerala and another (B.A.No.4109/2023) and Fasil v. State of Kerala [2023 (3) KHC 212] that followed Dheeraj Kumar Shukla (supra). He would contend that the petitioner herein is similarly situated as that of the accused in those cases.

Though the Prosecutor opposed the bail application, having gone through the judgments cited on behalf of the learned counsel petitioner, I feel there is no reason why similar treatment accorded to the accused in those cases should not be granted to the petitioner herein. True that commercial quantity is involved in relation to which crime the petitioner is accused, however, taking note of the above judgments, the absence of criminal antecedents and the fact that the petitioner has been in custody since 19.08.2021, and the chance of the trial getting over anytime soon being remote, the rigour of Section 37 of the NDPS Act has to be dispensed with at this stage. It is seen that A1 and A4 were similarly placed as this accused was granted bail by this Court in BA No.8379/2023 dated 4.10.2023. The allegation against this and the accused referred to above is similar. Accordingly, on the ground of parity, the petitioner herein is also enlarged on bail. In the result, the petitioner herein is released on bail subject to the following conditions:-

(i) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;

(ii) The petitioner shall report before the Investigating Officer as and when directed by him.

(iii) The petitioner shall furnish his residential address, including his mobile phone number, to the investigating officer as well as to the court.

(iv) The petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses

(v) The petitioner shall not be involved in any other crime while on bail.

(vi) The petitioner shall surrender his passport, if any, within seven days from the date of his release before the Court concerned, and if the release of the passport is required at a later period, the petitioner shall be at liberty to move an appropriate application for the same before the court having jurisdiction. If he has no passport, he shall file an affidavit to that effect before the court concerned on the date of execution of the bond or within three days thereafter.

If any of the conditions are violated, the court concerned will be empowered to take steps for cancellation of bail as per law;