Hashiq Mon vs State Of Kerala

Dr. Kauser Edappagath, J

This application is filed u/s 439 of the Code of Criminal Procedure seeking regular bail.

The applicant is the accused No.2 in Crime No.1005/2023 of Kalamassery Police Station, Ernakulam district. The offences alleged are punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The prosecution case, in short, is that, on 21-05-2023, at about 3.30 PM, the applicant along with accused No.1 were found in possession of 284 grams of MDMA in contravention of the NDPS Act and Rules and thereby committed the offences.

I have heard Sri.Ameena R., the learned counsel for the applicant and Smt. T.V.Neema, the learned Public Prosecutor. Perused the case diary.

The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to get bail. On the other hand, the learned Public Prosecutor submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicant, and he is not entitled to bail at this stage.

The applicant is a lorry driver. The accused No.1 was a passenger in the lorry. According to the applicant, he was transporting rubble from Pollachi to Alappuzha with due permit issued by the Geology Department and on his way, he gave a lift to the accused No.1. Thereafter, on getting information that the narcotic drug was transported in the lorry, the excise officials intercepted the lorry and on body search of the accused No.1, 284 grams of MDMA was seized. According to the applicant, he has absolutely no connection with the contraband seized from the possession of the accused No.1. He further stated that the accused No.1 is a total stranger to him and he had no previous acquaintance with him. It is true that, the fact that the contraband was seized from the possession of the accused No.1 while he was travelling in the lorry driven by the applicant may suggest the involvement of the applicant as well, provided there are other materials to connect the applicant with the crime. It is submitted that final report has already been filed. But there is absolutely no other material collected by the investigating agency, such as, call detail records or any financial transactions etc. to connect the relationship between the applicant and the accused No.1 and also to connect the applicant with the crime. It is true that, some of the witnesses cited by the prosecution stated that the applicant had previous acquaintance with the accused No.1, but that alone is not sufficient to connect the applicant with the crime. In the absence of any material to connect the applicant with the contraband seized from the possession of the accused No.1, I am of the view that rigour of Section 37 of the NDPS Act would not be attracted in this case. The applicant is in custody since 21-05-2023. For all these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose. Hence, the applicant is entitled to be released on bail.

In the result, the application is allowed on the following conditions: -

(i) The applicant shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.

(ii) The applicant shall not commit any offence of a like nature while on bail.

(iii) The applicant shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(iv) The applicant shall not leave the State of Kerala without the permission of the trial Court.

(v) The application, if any, for deletion/modification of the bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.