Fasal KS vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.34/2024 of Cheranelloor Police Station, Ernakulam, registered against the accused (five in number), for allegedly committing the offences punishable under Sections 22(c), 20(b)(ii)(A) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested on 10.01.2024.

The crux of the prosecution case is that: on 09.01.2024, at around 23.55 hours, while the Sub Inspector of Police, Cheranelloor Police Station, was conducting patrolling duty, he found the first accused in possession of 18.96 grams of MDMA, the second accused in possession 4.52 grams of MDMA in a room that was taken on rent by the fourth accused. In the subsequent search, the Detecting Officer also found 1.6 grams and 2.5 grams of MDMA in the room as well as in a car. The accused were found in possession of a total quantity of 27.67 grams of MDMA and 41.40 grams of ganja. Thus, the accused have committed the above offences.

Heard; Sri. K. Mohammed Rafeeq, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the respondents.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner's involvement in the crime. The petitioner has been implicated solely on the extrajudicial confession made by the accused Nos.1 & 2. The petitioner has been in judicial custody since 10.01.2024. It is reliably learnt as per the chemical analysis report that the contraband article allegedly seized from the accused Nos.1 & 2 is 'methamphetamine' and not 'MDMA' as alleged by the prosecution. Therefore, the contraband is only of an intermediate quantity. The investigation in the case is practically complete and the recovery has been effected. Hence, the petitioner is entitled to be released on bail.

The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She submitted that the petitioner is involved in another NDPS case for allegedly committing the offence under Section 27 of the NDPS Act. Nonetheless, she conceded to the fact that as per chemical  analysis  report  dated  21.03.2024  of  the Chemical Examiners Laboratory Department, Kakkanad, the contraband article is 'methamphetamine' and not 'MDMA'.

The prosecution was lodged against the accused principally on the allegation that they were found in conscious possession of 27.67 grams of 'MDMA' and 41.40 grams of ganja. It has now come on record, as per the chemical analysis report dated 21.03.2024, the contraband is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly after going through the chemical analysis report dated 21.03.2024 which shows that the contraband is 'methamphetamine’ and not ‘MDMA’, which is of an intermediate quantity, that the petitioner has been in custody since 10.01.2024, that the investigation in the case is practically complete and the recovery has been effected, I am of the definite view that petitioner’s continued detention is not necessary. Hence, 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 on every alternate Saturdays between 9 a.m. and 11 a.m for a period of three months or till the final report is laid, 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 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].