Anand vs State Of Kerala

A. Badharudeen, J

This is the 3rd bail application filed by the 2nd accused in Crime No.273 of 2023 of Kottarakkara Police Station, Kollam under Section 439 of the Code of Criminal Procedure.

Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary as such.

The prosecution allegations is that, based on a secret information received to the effect that a youngster had been traveling along with MDMA in an A.C bus coming from Bangalore, when search was conducted, it was found that a youngster was carrying 2 bags, in front of Dhana Boutique on the eastern side of Plakkottu Castle building, on the opposite side of Kottarakkara private bus stand. On seeing the excise party, the petitioner attempted to escape. Thereafter, he was intercepted and, on search, 106 gram of MDMA was seized from his possession. Accordingly, crime was registered alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (‘NDPS Act’ for short hereinafter). Later, investigation revealed that the 1st accused along with the petitioner herein purchased MDMA from Bangalore on 26.01.2023 along with Vishnu and Anand and they used to share the profit out of the said business. Further investigation revealed that the 2nd and 3rd accused entrusted Rs.90,000/- to the 1st accused for the purchase of contraband. Further when search was conducted, a yellow plastic cover, 3 ball shaped packets to store MDMA tied with masking tape, were seized from the petitioner's custody.

The learned counsel for the petitioner reiterated the contentions raised before this Court in the two earlier bail applications filed and also submitted that while filing the present bail application, the petitioner failed to point out dismissal of two bail applications by this Court. This submission appears to be not believable and the explanation offered to get out of suppression of filing of two earlier bail applications, in fact, is one intended to have Bench hunting.

In fact, the earlier bail applications were dismissed holding that the rider under Section 37 of the NDPS Act could not be diluted in a case where commercial quantity of contraband was recovered. Relevant paragraph of the order dated 17.18.2023 in the second bail application i.e. B.A. No.2749 of 2023 is as under:

This Court dismissed the first bail application considering the fact that on perusal of the case diary, it was revealed that initially contraband to the tune of 106 gram of MDMA was seized from the possession of the 1st accused and later investigation revealed that the 1st accused purchased MDMA by using the money handed over by the 2nd and 3rd accused and there are consistent calls in between the 1st accused, 2nd accused and 3rd accused during the relevant period. Further, investigation in this crime was at the very initial stage and details were to be obtained by the Investigating Officer. Further in cases involving commercial quantity of contraband this Court cannot grant regular bail to the petitioner without satisfying the conditions as provided under Section 37 of the NDPS Act.

The learned counsel for the petitioner argued the same grounds earlier argued for granting regular bail to the petitioner highlighting custody of the petitioner from 29.01.2023, after suppressing dismissal of two earlier bail applications willfully. In fact, the earlier bail applications filed by the petitioner were dismissed highlighting the rigor under Section 37 of the NDPS Act. Therefore, there is no reason to revisit the said orders.

In view of the above, this bail application stands dismissed.