Ansar vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.119/2024 of the Ernakulam North Police Station, Ernakulam, registered against him for allegedly committing the offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 22.1.2024.

The gist of the prosecution case, is that: on 22.1.2024 at around 2.18 hours, the accused was found in possession of 0.83 grams of MDMA opposite to the Reserve Bank, Banerji road, Ernakulam. Thus, the accused has committed the above offence.

Heard; Sri. Francis Assisi, the learned counsel appearing for the petitioner and Smt.Seetha S. the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been in judicial custody since 22.1.2024. The investigation in the case is practically complete and recovery has been effected. The contraband that was allegedly seized from the petitioner is of an intermediate quantity. Hence, the petitioner’s further detention is unnecessary. The petitioner has no criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She contended that the investigation is at its preliminary stage. Nonetheless, she conceded to the fact that the contraband that was seized from the petitioner is of an intermediate quantity, the petitioner has no criminal antecedents and recovery has been effected.

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.

On a consideration of the facts, the rival submissions made across the Bar, the materials placed on record, particularly taking note of the fact that the contraband that was seized from the petitioner is of an intermediate quantity, the petitioner has no criminal antecedents, that the petitioner has been in judicial custody since 22.1.2024, which is 35 days and recovery has been effected, I am of the definite view that the petitioner’s further 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 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 (NCT of Delhi) and another [2020 (1) KHC 663].