Ashil Lenin 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 Occurrence Report No.3/2024 of Ernakulam Excise Enforcement & Anti Narcotic Special Squad, registered against him for allegedly committing the offences punishable under Sections 20(b)(ii)(A), 22(c) & 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 06.01.2024.

The essence of the prosecution, is that: on 05.01.2024, at around 6.25 p.m., the accused was found in possession of 37.494 grams of MDMA, 3.1 grams of ganja and 2.276 grams of Hashish oil from the premises that was owned by him. Thus, the accused has committed the above offences.

Heard; Sri. M. Baiju Noel, the learned counsel appearing for the petitioner and Smt. Seetha, the learned Senior Public Prosecutor appearing for the respondent.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The petitioner has been languishing in jail since 06.01.2024. The investigation in the case is practically complete. The petitioner has reliably learnt that the contraband article allegedly seized from him is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity. The petitioner has no criminal antecedents. Hence, the petitioner is entitled to be released on bail.

The learned Public Prosecutor opposed the application. Nonetheless, she conceded to the fact that the petitioner was arrested on 06.01.2024, that the petitioner has no criminal antecedents, and that the investigation in the case is practically complete. She also handed over the chemical analysis report dated 02.02.2024 issued by the Chemical Examiners Laboratory Department, Kakkanad, which shows that the contraband article is 'methamphetamine' and not 'MDMA'.

The prosecution was lodged against the accused principally on the allegation that he was found in possession of 37.494 grams of 'MDMA', along with other contraband articles. It is on the basis of the said accusation, that the petitioner was arrested and was remanded to judicial custody on 06.01.2024. It has now come on record, as per the chemical analysis report dated 02.02.2024, the contraband article is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity. The other two contraband are also of an intermediate quantity.

After bestowing my anxious consideration to the materials placed on record, particularly to the chemical analysis report, that the contraband is of an intermediate quantity, that the petitioner is in custody since 06.01.2024, that the petitioner has no criminal antecedents and, that the investigation is practically complete, I am of the view that the petitioner is entitled to be released on bail, subject to stringent conditions.

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 one month or till the final report is laid, whichever is earlier and 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 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 moved and entertained by 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 Anr. [2020 (1) KHC 663].