Aswin P.B vs State Of Kerala

A.Badharudeen, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the petitioner who is the second accused in Crime No.1469 of 2022 of Maradu Police Station, Ernakulam, where he alleged to have committed offences punishable under Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act.

Heard the learned counsel for the petitioner as also the learned Public Prosecutor.

I have perused the Case Diary materials along with report produced by the learned Public Prosecutor.

The prosecution allegation is that the first accused possessed 3.76 gm of MDMA for the purpose of sale at 21.10 hours on 19.12.2022 near St.Mary's UP School, Vakayilachan Road, Maradu. Accordingly, he was intercepted contraband seized and he was nabbed. Pursuant to recovery and arrest of the accused, crime alleging commission of the above offences was registered and the same is on investigation. As far as the complicity of the petitioner herein, who is the second accused concerned, the first accused given confession statement to the effect that the contraband recovered from the hands of the first accused was given by the second accused and accordingly, he also was arrested on 20.12.2022.

While pursuing regular bail to the petitioner who has been in custody from 20.12.2022, the learned counsel for the petitioner submitted that the petitioner is innocent and nothing recovered from him. He was nabbed and detained solely on the basis of the confession statement given by the first accused. Pointing out the custody of the petitioner from 20.12.2022 and the substantive improvement in the investigation, the learned counsel pressed for grant of bail.

Whereas the learned Public Prosecutor opposed bail, on the submission that, the second accused is a person who has been supplying contraband to various persons and who had supplied the contraband to the first accused and the first accused was nabbed, when he attempted to sell the same to school children. The learned Public Prosecutor also pointed out involvement of the petitioner in Crime No.356 of 2022 of Muhamma Police Station, where the allegation was that he had committed offence under Section 27(b) of the NDPS Act.

On perusal of the available materials, it is discernible that the confession statement given by the first accused is the basis on which the petitioner was arrested and incorporated as second accused. At the same time, his involvement in another NDPS crime is a matter of serious concern. Though in the earlier crime, the quantity of contraband seems to be small quantity, the allegation against the petitioner is that he had given contraband to the first accused is having force.

It  is  submitted  by  the  learned  Public Prosecutor, as reported by the Investigating Officer, that it is necessary to investigate the source of the contraband and the call details of the accused to find out the interstate lobby behind transport and supply of the contraband.

It is true that the petitioner has involvement in another crime. The same is noted with extreme displeasure. However, nothing recovered from him. Since he has been in custody from 20.12.2022, I am inclined to release him on bail on conditions and one among the conditions is that he shall not involve or indulge in any 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.

In the result, this petition stands allowed and he is released on bail on the following 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.

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, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter.

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.