Gokul G.B 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.475/2024 of the Thrikkakara Police Station, Ernakulam, registered against the accused for allegedly committing the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 19.04.2024.

The essence of the prosecution case is that: on 19.04.2024, at around 22 hours, the Investigating Officer got secret information that a person was dealing with contraband article. Accordingly, he conducted a search in room No.306 of a hotel and found the accused in possession of 37.19 grams of MDMA. The accused was arrested at the spot with the contraband article. Thus, the accused has committed the above offence.

Heard;  Sri.P.Mohammed  Sabah,  the  learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. There is no material to show that the contraband was seized from the conscious possession of the petitioner. The petitioner has reliably learnt that the contraband involved in the case is not 'MDMA' but only 'methamphetamine'. Therefore, the contraband is of an intermediate quantity. The petitioner does not have any criminal antecedents. Hence, the petitioner is entitled to be released on bail, especially since the investigation in the case is practically complete. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. She submitted that the investigation in the case is in progress. She also stated that, if the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. However, the learned Public Prosecutor made available the chemical analysis report issued by the Chemical Examiner's Laboratory Department, Kakkanad dated 28.05.2024 which substantiates the fact that the contraband involved in the case is 'methamphetamine' and not 'MDMA' as alleged by the prosecution. She also stated that as per the records available with the Investigating Officer, the petitioner does not have any criminal antecedents.

The prosecution was launched against the petitioner on the allegation that he was found in possession of 37.19 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 'methamphetamin' and not 'MDMA'. Therefore, the contraband is of an intermediate quantity. It is reported that the petitioner does not have any criminal antecedents.

On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically complete, recovery has been effected and further that the contraband involved in the case is of an intermediate quantity and the petitioner does not have criminal antecedents, 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 on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is filed, 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 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].