Al Ameen vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.432/2024 of the Pathanapuram Police Station, Kollam, registered against the accused, for allegedly committing the offences under Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested on 09.04.2024.

The essence of the prosecution case is that; on 09.04.2024, at around 15.50 hours, the accused 1 to 4 were found in conscious possession of 18.68 grams of MDMA. The accused were arrested then and there at the spot with the contraband article. Thus, the accused have committed the above offences.

Heard Sri. Rameez Nooh, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s involvement in the case. The petitioner has been in judicial custody since 09.04.2024, the investigation in the case is complete and recovery has been effected. Moreover, the petitioner has reliably learnt that, as per the Chemical Analysis Report, the contraband article allegedly seized from the accused is 'methamphetamine' and not 'MDMA', as alleged by the prosecution. Therefore, the contraband is only of an intermediate quantity. The other accused have already been enlarged on bail by the Court of Session. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that the investigation is not complete. He also stated that the petitioner is a history sheeter, since he is involved in 11 other crimes. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. However, the learned Public Prosecutor made available the Chemical Analysis Report dated 31.5.2024 submitted by the State Forensic Science Laboratory, Thiruvananthapuram, which shows that the contraband involved in the case is ‘methamphetamine and is of an intermediate quantity.

The learned counsel for the petitioner refuted the submissions of the learned Public Prosecutor and said that all the crimes registered against the petitioner are politically motivated crimes, which were registered against him while he was a student. The petitioner does not have antecedents of similar nature.

The prosecution was lodged against the petitioner on the allegation that the accused was found in conscious possession of 18.68 grams of 'MDMA', which is of a commercial quantity. Now, as per the chemical analysis report, it has turned out that the contraband involved in the case is 'Methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity.

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 72 days, the contraband involved in the case is of an intermediate quantity, investigation in the case is practically complete and recovery has been effected, I am of the view that the petitioner’s continued detention is unnecessary. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to  the  satisfaction  of  the  court  having  jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is filed, whichever is earlier. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].