Al Ameen vs State Of Kerala

Dr. Kauser Edappagath, J

This is the second application filed u/s 439 of Code of Criminal Procedure seeking regular bail.

The petitioner is the accused No.1 in Crime No.35/2021 of Excise Range Office, Ernakulam. The offences alleged are punishable under Sections 22(C), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case in short is that on 16.08.2021 at about 8.45pm, the petitioner along with the 2nd accused were found in possession of 174.17 grams of MDMA for sale with a bike, currency note worth Rs.4,000/- and two mobile phones in contravention of the NDPS Act and thereby committed the offences.

Heard both sides and perused the case diary.

The learned counsel for the petitioner submitted that the petitioner is absolutely innocent and he has been falsely implicated in the present case. He further submitted that there are no materials to connect the petitioner with the alleged crime and hence he is entitled to get bail. The learned Public Prosecutor opposed the bail application. He contended that the alleged incident occurred as a part of the intentional criminal acts of the petitioner and if the petitioner is released on bail at this stage, it would affect the course of investigation.

Now the final report has been filed. A copy of the final report has been produced before me.

Smt.Sruthy N.Bhat, the learned counsel for the petitioner also made available to me a copy of the chemical analysis report. It would show that the contraband article is 'methamphetamine hydrochloride' instead of MDMA. The methamphetamine hydrochloride above 50gm. is commercial quantity but MDMA above 10 gm. is commercial quantity.

The prosecution allegation is that, only 12.47 gm. was seized from the possession of the petitioner. On questioning him, he stated that the contraband was supplied to him by the 2nd accused. Accordingly, the excise party went to the flat where the 2nd accused was residing and from where 150.452 gms. of methamphetamine hydrochloride also was seized. Thus, together it would come to commercial quantity.

But the quantity seized from the petitioner alone is intermediate quantity. There is absolutely no material in the final report to suggest that the petitioner has any connection with the contraband seized from the possession of the 2nd accused. The petitioner is in custody since 16.8.2021.

Considering all these aspects, I am of the view that, the further detention of the petitioner is not necessary and he can be released on bail.

In the result, the application is allowed on the following conditions:-

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

(ii) The petitioner shall fully co-operate with the investigation.

(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner shall also appear before the investigating officer as and when required by him.

(iv) The petitioner shall not commit any offence of like nature while on bail.

(v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The petitioner shall not leave State of Kerala without the permission of the trial court.