Iqlas vs State Of Kerala

K.Haripal, J

Petitioners are accused in crime 169 of 2021 of Nallalam police station in Kozhikode district, which was registered under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the NDPS Act. The prosecution allegation is that on 05.05.2021 the Sub Inspector and party, Nallalam police station found the petitioners in possession of 12.050 grams of MDMA for the purpose of sale. After seizing the items from them under Annexure-A2 seizure mahazar, that crime was registered on 05.05.2021 and both the petitioners were taken into custody and since then they are in judicial custody. Their earlier application for bail was dismissed by this Court by Annexure-A4 order. Earlier they had moved an application under Section 439 of the Cr.P.C. before the Special Court (NDPS Act cases), Vadakara also, which was dismissed and thereafter they moved this Court with BA 5562 of 2021. By order dated 13th August, 2021 that application was dismissed and now they have moved this Court again seeking bail.

I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.

According to the learned counsel, even though in the earlier order this Court found that they cannot be released on bail since the embargo under Section 37 of the NDPS Act is there holding that they had carried commercial quantity of ganja, it cannot be held that both had carried commercial quantity in their possession. Referring to Annexure-A2 seizure mahazar the learned counsel pointed out that only 8.250 grams of ganja was allegedly seized from the possession of the first petitioner and the second petitioner had possessed only 3.800 grams and if only both are taken together, it can be reckoned as commercial quantity for attracting Section 22(c) of the NDPS Act. According to the learned counsel, there is absolutely no reason to consider both the quantities together. In other words, if they are taken individually, both of them carried only intermediary quantity and therefore the embargo under Section 37 of the NDPS Act cannot justifiably be invoked against them. The learned counsel also submitted that there is absolutely no evidence to prove any conspiracy having hatched in the matter of carrying the alleged quantity merely for the reason that both of them were found together. In the absence of overwhelming evidence, conspiracy cannot be attributed and Section 29 of the NDPS Act cannot be invoked against the petitioners. He also pointed out that in the FIR also there is no allegation that they had committed conspiracy. Referring to the final report he submitted that the allegations against them on the conspiracy are rather fragile. Therefore, both of them are sought to be released on bail.

On the other hand, the learned Senior Public Prosecutor pointed out that both the petitioners have criminal antecedents; the first petitioner has two crimes against him which are IPC offences, whereas the 2nd petitioner is involved in two NDPS Act cases and therefore he opposed the application for bail.

I have gone through the Annexure-A2 seizure mahazar in detail. It is shown that on 05.05.2021, when the Sub Inspector and party were engaged in law and order patrol duty, at about 10:45 a.m. at Kolathara Rahman bazar, they noticed two persons moving through a plantain plantation in suspicious circumstances. On getting information, police party reached there and intercepted both of them. They could not give satisfactory explanation about their presence at the place at that time; they were found perplexed. One of them was found throwing away something from his pocket, but he was intercepted and the item contained in the cover was found to be MDMA. For conducting body search a gazetted officer was called. Thus the Inspector of Police reached there and in his presence their body was searched and both of them were found carrying MDMA in their possession. Thus the contraband, 12.050 grams of MDMA, was seized from the possession of the accused persons, i.e. 3.800 grams from the second petitioner and remaining quantity from the first petitioner and thus both of them were arrested after seizing the items. Everything was done following the procedural formalities in the presence of the independent witnesses and also the gazetted officer and thus the crime was registered. It is also stated that on conclusion of investigation charge sheet has been laid before court and now they face allegations under Section 22(c) read with Section 29 of the NDPS Act.

Even though the earlier application moved before this Court was considered and rejected, after going through Annexure-A2 seizure mahazar, it seems that it is too early for this Court to consider whether there was conspiracy having been hatched by the parties in the matter of procuring so much quantity of MDMA. The police party or no one had seen the petitioners dealing with the MDMA. Secondly, it is only a matter of evidence whether the petitioners had hatched a criminal conspiracy for procuring the items or they had carried it for the purpose of conducting trade etc. Therefore, after going through the seizure mahazar, it does not seem that there is justification in taking the quantities together for the purpose of saying that the petitioners had carried commercial quantity of MDMA after hatching conspiracy. In the circumstances, it appears that it should have been reckoned individually and that means they cannot be held liable at least for the present that they had carried commercial quantity of MDMA in their possession.

The petitioners are in judicial custody for the last more than six months, from 05.05.2021 onwards. The first petitioner does not have antecedents in NDPS Act cases. It is true that he is involved in two cases of IPC offences. But for the present purpose, that cannot be taken as an impediment for rejecting his application for bail. At the same time, such a view cannot be taken as regards the second petitioner. As pointed out by the learned Senior Public Prosecutor, there are two cases registered against the second petitioner under the NDPS Act. That means, he can be described as a habitual offender of cases of similar nature. In all probability, he must have been released on bail in both the cases and it has to be held that registration of such cases did not have any impact in his life and he is an incorrigible person. Therefore, there is no justification in granting him bail, even though the quantity is taken individually.

In the result, the first petitioner shall be released on bail on the following conditions:-

i) The first petitioner shall execute bond for Rs.1,00,000/-(Rupees one lakh only) with two solvent sureties each for the like amount to the satisfaction of the trial court; one of the sureties shall be a near relative;

ii) He shall surrender his passport before the trial court within ten days from the date of release; if he does not have a passport, he shall file an affidavit to that effect within the said period;

iii) He shall not leave Kozhikode district until further orders;

iv) He shall not involve in any such case during the period on bail;

v) He shall appear before the trial court every day of posting;

vi) He shall not try to contact or influence the witnesses or tamper with evidence;

vii) He shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19 pandemic;

viii)If any of the above conditions is violated by him, the jurisdictional court will be at liberty to cancel the bail in accordance with law.

The bail application is allowed in part. As far as second petitioner is concerned, the bail application is dismissed.