Ahammad Nishaf Anvar @Chappu vs State Of Kerala

A. Badharudeen, J

This is the third application for regular bail filed by the 2nd accused in Crime No.1029/2022 of Kasaragod Police Station, Kasaragod.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

I have perused the relevant documents including the report of the Investigating Officer, in detail.

The prosecution case is that, at about 10.00 a.m. on 26.12.2022, while Sub Inspector of Police, Kasaragod Police Station was doing patrol duty and when reached at 13.00 hrs. near Abdul Rahman Haji park, Poyakkara, it was found that a person was engaged in smoking inside the park. On seeing the police party, he attempted to hide himself. He was intercepted and questioned and later, 48 grams of MDMA ecstasy pills were recovered from him. Thereafter, the person, who was found in doubtful circumstances, was arrested and arrayed as accused in this crime on the allegation that, he had possessed 48 grams of MDMA ecstasy pills, against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter) and thereby, committed offences punishable under Sections 27(b) and 22(c) of the NDPS Act. On further enquiry, it was revealed that the 2nd accused/petitioner herein is the person, who used to supply MDMA to the 1st accused through online and in this regard, constant calls in between the 1st and 2nd accused from their respective mobile numbers viz., 9074124317 (1st accused) and 9380678787 and 9544852734 (2nd accused) and whats app chats also were recovered. Accordingly, the 2nd accused was arrested and it was found that the 2nd accused obtained Rs.41,000/- (Rupees Forty One Thousand only) from the 1 st accused for the purpose of booking MDMA to the 1st accused and the same was converted into crypto currency. Accordingly, he also was nabbed and arrayed as 2nd accused and he has been in custody from 28.12.2022 onwards.

The learned counsel for the petitioner reiterated the contentions raised before the trial court repeatedly in Crl.M.P.No.486/2023 and Crl.M.P.No.1587/2023, two successive bail applications filed by the petitioner before the Special Court, which ended in dismissal and the reasons urged when this Court considered his second bail application as per Annexure V order.

Even though the learned counsel for the petitioner argued at length to convince this Court that the complicity of the petitioner is something less, the learned Public Prosecutor vehemently supported the prosecution case and argued that the prosecution case as to involvement of the petitioner in this crime is well made out and, therefore, his complicity is at par with the 1st accused in a case involving commercial quantity of MDMA. Therefore, the petitioner cannot be released on bail by diluting the rider under Section 37 of the NDPS Act.

To be on the crux of this matter, as per Annexure II order, the learned Special Judge dismissed the bail application at the instance of the petitioner, holding that the petitioner’s involvement in this crime is well made out and he should not be released on bail by diluting the rider under Section 37(1)(b)(ii) of the NDPS Act. Subsequently, Annexure III order was passed by the Special Judge, dismissing the bail application moved by the petitioner for the second time. Thereafter, the petitioner filed B.A.No.1885/2023 before this Court and later, the same was withdrawn with permission, as per Annexure IV order. Again the petitioner approached this Court for regular bail by filing B.A.No.3251/2023 and this Court dismissed the same as per Annexure V order, holding the view that while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where the learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. This Court accordingly found that the petitioner could not be released on bail as he did not satisfy the required conditions in any manner.

In fact, now also there is no change of circumstance or reason to release the petitioner on bail and hence the bail application stands dismissed.