Ameer K.M. vs State Of Kerala

C.S.Dias, J

These applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.1/2024 of Excise Enforcement and Anti Narcotic Special Squad, Kasaragod, registered against them for allegedly committing the offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioners were arrested on 01.01.2024.

The gist of the prosecution case is that: on 01.01.2024, at around 21.50 hours, the accused were found transporting 12.53 grams of MDMA in a motorcycle for the purpose of sale. The accused were arrested then and there at the spot with the contraband article. Thus, the accused have committed the above offences.

Heard; Sri. Sam Isaac Pothiyil, the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik and Smt. Seetha. S., the learned Public Prosecutors.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The petitioners have been languishing in jail since 01.01.2024, the investigation in the case is complete, and the recovery has been effected. Moreover, as per the chemical analysis report, it turned out that the contraband involved in the case is ‘methamphetamine’ and not ‘MDMA’, as alleged by the prosecution. Therefore, the contraband involved in the case is of an intermediate quantity. Therefore, the petitioners are entitled to be released on bail. Hence, the applications may be allowed.

The learned Public Prosecutors opposed the applications. They submitted that the first accused is a person with criminal antecedents since he is involved in two other cases. Nonetheless, they did not dispute the fact that the petitioners have been in judicial custody since 01.01.2024, the investigation in the case is complete, and the recovery has been effected. It is also conceded that, as per the chemical analysis report issued by the Regional Chemical Examiner’s Laboratory, Kozhikode, dated 02.02.2024, the contraband involved in the case has turned out to be ‘methamphetamine’ and not ‘MDMA’.

The prosecution was lodged against the petitioners on the accusation that they were found in possession of 12.53 grams of MDMA. They were arrested on the spot with the alleged contraband article. Now, as per the chemical analysis report dated 02.02.2024, issued by the Regional Chemical Examiner’s Laboratory, Kozhikode, it has turned out that the contraband involved in the case ‘is methamphetamine and not MDMA.’ Therefore, the contraband is of an intermediate quantity.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the chemical analysis report, which shows that the contraband involved in the case is of an intermediate quantity, that the petitioners have been in judicial custody for the last 142 days, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the view that the petitioners’ further detention is unnecessary. Hence, I hold that the petitioners are entitled to be released on bail.

In the result, these applications are allowed, by directing the petitioners to be released on bail on them 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 court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioners 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. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners 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 petitioners shall not commit any offence while they are on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits 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 petitioners even while the petitioners are 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].