Asharaf. P 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.09/2024 of the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 22 (c), 27(a) and 25 of the Narcotic Drugs and Psychotropic Substances Act (‘the Act’ for short), 1985. The petitioner was arrested on 08.02.2024..

The crux of the prosecution case is that: on 08.02.2024, at around 19.45 hours, the accused was found in possession of 43.3031 grams of MDMA in a hotel in Ernakulam. The accused was arrested on the spot with the contraband article. Thus, the accused has committed the above offences.

Heard; Sri. V.S. Salim, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik., the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. There is no material to substantiate the petitioner’s involvement in the case. The petitioner has been in judicial custody for more than four months, the investigation in the case is complete, and the recovery has been effected. The petitioner has reliably learnt that, as per the chemical analysis report, the contraband involved in the case is 'methamphetamine’ and not ‘MDMA’. Therefore, the contraband involved is of an intermediate quantity. Moreover, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that there are incriminating materials to substantiate the petitioner’s involvement in the crime. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. However, the learned Public Prosecutor made available the chemical analysis report submitted by the Regional Chemical Examiner’s Laboratory, Kakkanad, dated 08.04.2024, which shows that the contraband involved in the case is ‘methamphetamine’ and not ‘MDMA’, as alleged by the prosecution. He also did not dispute the fact that the petitioner does not have criminal antecedents.

The prosecution allegation against the petitioner is that, he was found in conscious possession of 43.3031 grams of MDMA, which is of a commercial quantity. Indisputably, as per the chemical analysis report referred to above, the contraband has turned out to be methamphetamine. Therefore, the contraband is of an intermediate quantity. Moreover, the petitioner does not have criminal antecedents.

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the contraband has turned out to be methamphetamine, which is of an intermediate quantity, that the petitioner has been in judicial custody for more than four months, that the investigation in the case is practically complete, that the petitioner does not have any criminal antecedents, and that the recovery has been effected, I am of the view that the petitioner’s further detention is unnecessary. Hence, I hold that 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 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 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 he is 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].

(viii) Any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts.