Arshad Asharaf vs State Of Kerala

A. Badharudeen, J

This is the 2nd bail application filed under Section 439 of the Code of Criminal Procedure, seeking regular bail and the petitioner is the 5th accused in crime No.283/2023 of Pattambi Police Station, Palakkad.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the chemical analysis report, placed by the learned Public Prosecutor.

The prosecution case is that at about 13.45 p.m on 17.04.2023, an information was received by the Sub Inspector of Police, Pattambi Police Station to the effect that a person was engaged in sale of contraband near MES School, Pattambi. Accordingly, the Sub Inspector of Police and party reached the place at 14.15 hours and recovered 1.620 gram and 14.550 gram of MDMA from the possession of the 1st accused. Subsequent to the recovery, he was arrested and crime was registered alleging commission of offence punishable under Sections 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1987 (hereinafter referred to as `NDPS Act' for short). On later investigation it was revealed that the other accused also involved in this crime. Accordingly, accused 2 and 3, who were summoned and were nabbed in this crime. On further investigation, it has been revealed that the MDMA was arranged and handed over to the other accused by the 5th accused, who has been dealing MDMA in Bangalore. It was found further that accused No.1 contacted the 5th accused and as directed by the 1st accused, Rs.28,000/- was arranged by accused 1 to 3 together and transferred in the account of the 5th accused through the account of the 3rd accused and in turn, the contraband was purchased by the 5th accused using the said sum. Accordingly, the petitioner/5th accused was arrested on 17.04.2023 and has been in custody till now.

The learned counsel for the petitioner argued that nothing recovered from the conscious possession of the petitioner and the allegation against the petitioner is that the petitioner is the person, who had given the contraband which was seized from the 1st accused. According to the learned counsel for the petitioner, the materials available against the petitioner in this crime is the confession statement of the co-accused and call details. In fact the confession statement is inadmissible during trial and call details are feeble evidence to connect him with this crime. Therefore, the petitioner is innocent in this crime and holding so he is liable to be released on bail.

It is also pointed out by the learned counsel for the petitioner that, even though, the prosecution has a case that the contraband was MDMA coming to the tune of 1.620 gram and 14.550 gram, as per the chemical analysis report, it was found that the contraband was Methamphetamine and therefore, the quantity of the contraband is intermediate and as such the offence would attract in the facts of the case is one under Section 20(b)(ii)(B) of the NDPS Act. In such case, the bar under Section 37 of the NDPS Act has not application.

The learned Public Prosecutor also conceded that the contraband is intermediate quantity as per the FSL report and copy of FSL report dated 27.07.2023 finding the contraband as Methamphetamine has been placed.

In this case, the earlier bail application of this petitioner was dismissed on the ground that the rider under Section 37 of the NDPS Act could not be diluted. Since, the contraband is found to be Methamphetamine and 16.17 gram of Methamphetamine is intermediate quantity, the offence would attract at present is under Section 20(b)(ii)(B) of the NDPS Act. Therefore, the rigour under Section 37 of the NDPS Act has no application is the present case.

Accordingly, the petitioner who has been in custody from 17.04.2023 can be enlarged on bail taking note of the progress of the investigation.

Therefore, this petition stands allowed. The petitioner is enlarged on bail on conditions:

i. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional court concerned.

ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial.

iii. The petitioner shall appear before the Investigating Officer as and when directed, apart from appearing before the Investigating Officer on all Mondays between 9 am and 10 am, for a period of two months.

iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer.

v. The petitioner shall surrender his passport before the Jurisdictional Court on the date of execution of the bail bond or within ten days therefrom, with special permission of the Jurisdictional Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time.

vi. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted.