Ajesh Biju vs State Of Kerala

Viju Abraham, J.

This is an application for regular bail.

Petitioner herein is arrayed as the 3rd accused along with two other persons in Crime No.21 of 2022 of Kalikavu Excise Range Office, Malappuram registered alleging commission of offences punishable under Sections 22(c) and 29 of the Narcotic drugs and Psychotropic substances Act hereinafter referred to as NDPS Act.

The prosecution case, in brief, is that on 22.9.2022 at about 5 p.m. the excise authorities received information that the petitioner along with two other persons were waiting at Companypady, Kodikkunnu, Thirurali Village in Motor Cycles for selling MDMA and the petitioners were arrested along with the contraband.

The petitioner submits that he has been falsely implicated in the above-said crime. On 21.09.2022, Basheer, who is the petitioner’s friend and one of the accused called the petitioner saying that he had some chest discomfort. When the petitioner reached the residence of the above said Basheer at Mangalassery at Manjeri Town, the Excise officials were present there and without showing any further reasons, the petitioner was arrested along with Basheer and another person. The petitioner was arrested on 22-9-2022 and he is in judicial custody since that day. It is also submitted that crime was registered against the petitioner on false and fabricated grounds. The crime was registered under the influence of some local people, without proper enquiry and investigation. Thus, the crime is registered with a malafide motive and with an intention to spoil the future of the petitioner. It is also submitted by the counsel for the petitioner that he is innocent of all the allegations levelled against him and that he has been falsely implicated in this case. It is also submitted that all the material witnesses in this case are questioned, recovery is effected, and the custodial interrogation of the petitioner is already over, therefore further detention of the petitioner is not required for the purpose of the investigation and that the petitioner has no other criminal antecedents.

Learned Public Prosecutor seriously opposed the application for bail. The petitioner along with the other two accused was jointly found in possession of 23.104 gms of MDMA and the petitioner along with the other accused was arrested on the spot along with the contraband. The body search of the petitioner and other accused was done in compliance with the provisions of the NDPS Act and from the person of the petitioner 5.709 gms of MDMA, from the possession of 1st accused, 11.958 gms of MDMA and from the 2nd accused 5.437 gms of MDMA were seized.  It is also submitted that the petitioner was arrested only on 22.09.2022 and the investigation is going on regarding the source of the contraband, mobile phone CDR details as well as the bank account details. Investigation so far revealed that the petitioner is accused in another NDPS case, C.R. No. 25/2022 registered by the Manjeri Excise Range Office.

Since the contraband involved is of commercial quantity, the rigor of Section 37 of the NDPS Act will definitely come into play, and for the release of the petitioner on bail, the twin conditions provided in the said Section are to be satisfied. I am of the prima facie view that the petitioner could not substantiate that the rigor under Section 37 of the NDPS Act will not apply in the facts and circumstances of this case.

Therefore, the petitioner is not entitled to bail at this stage and the bail application is accordingly dismissed.