Anfas vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.1573/2023 of the Kilikolloor Police Station, Kollam, alleging him to have committed the offence under Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested on 15.11.2023.

The prosecution case, in brief, is that on 15.11.2023 at about 5.35 p.m, the police recovered 2.025 kilograms of ganja from the room of the first accused. It is alleged that, the first accused confessed that the contraband article was supplied by the second accused. Thus, the accused have committed the above offences.

Heard Sri.Pratheesh P, learned counsel appearing for the petitioner and Sri.MP.Prasanth, the learned Public Prosecutor appearing for the respondent.

Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. It is solely on the basis of the alleged confession statement given by the first accused that the petitioner was implicated in the crime. No seizure has been made as against the petitioner. Petitioner is the sole breadwinner of the family. The petitioner is willing to abide by any stringent condition imposed by this Court. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that it was on the basis of the confession made by the first accused that the petitioner was implicated and arrested in the crime. The first accused has categorically confessed that it was the petitioner who supplied the contraband article. However, he conceded that the investigation is at the final stage and the petitioner has no criminal antecedents. Yet, he prayed that the application be dismissed.

Indisputably, the petitioner was arrested on 15.11.2023. He has been implicated on the basis of the confession made by the first accused, that it was the petitioner who supplied the contraband article to the first accused.

In Dheeraj Kumar Shukla v. The State of Uttar Pradesh [2023 KHC 6545], the Hon’ble Supreme Court has categorically held that the rigour under Section 37 of the NDPS Act can be diluted, if the accused has no criminal antecedents.

After bestowing my anxious consideration to the materials placed on record, particularly the fact that the petitioner has no criminal antecedents and he has been in judicial custody since 15.11.2023, I am of the definite view that the rigour under Section 37 of the Act stands diluted. Hence, the petitioner is entitled to be released on bail.

In the result, the application is allowed, by directing the petitioner to be released on bail on his 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 alternate Saturdays between 9 a.m. and 11 a.m for a period of three 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 they are 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 of Delhi and another [2020 (1) KHC 663].