Kalander Shafi vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail under section 439 of the Code of Criminal Procedure, 1973.

Petitioners are accused Nos. 1 and 2 in Crime No.1 of 2023 before the Manjeswaram Police Station, Kasaragod district. The offences alleged against the petitioners are under section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According to the prosecution, on 01.01.2023, at about 1.05 hours, the accused 1 and 2 were found in possession, transporting 43.10 gms of MDMA in a Honda Deo Scooter bearing Registration No.KL-70-H-7400 and thereby committed the offences alleged.

Sri.Rajendran, the learned counsel for the petitioners contended that though the contraband seized from the petitioners were alleged to be MDMA, the chemical analysis report revealed that the same is only Methamphetamine Chloride. It was further submitted that petitioners were arrested on 01.01.2023 and that they have been in custody since then under the wrong belief that the seized contraband was MDMA. Since it is now revealed that the contraband is Methamphetamine, the quantity seized becomes less than the commercial quantity and therefore the restriction under Section 37 of NDPS Act will not apply. It was further submitted that considering the period of detention already undergone and the nature of the contraband allegedly seized, they ought to be released on bail.

Smt.Sreeja V., the learned Public Prosecutor opposed the application and submitted that though on analysis it has been revealed that the contraband seized from the petitioners is not MDMA but Methamphetamine, considering the seriousness of the crime, petitioners ought not to be released on bail. It was further submitted that though the quantity seized from the petitioners have now become less than the commercial quantity and the offence have been altered to Section 22(b) of NDPS Act, the nature of offences committed ought to be borne in mind by this Court.

I have considered the rival contentions. At the time when the crime was detected, it was believed that petitioners were in possession of 43.10 gms of MDMA. Admittedly after analysis, the contraband is found to be Methamphetamine Chloride. The commercial quantity of Methamphetamine is 50 gms. while that of MDMA is 20 gms. Since the quantity found in possession of the petitioners after analysis has become less than the commercial quantity, the restriction under Section 37 of NDPS Act cannot apply, as rightly contended by the learned counsel for the petitioners.

Petitioners were arrested on 01.01.2023 and more than 160 days have elapsed. Even though the final report has not yet been filed, the investigation is almost in the final stages. Taking into consideration the aforesaid circumstances, this Court is of the view that petitioners can be released on bail on strict conditions.

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

(a) Petitioners shall be released on bail on them executing a bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction and one of the sureties shall be a local surety.

(b) Petitioners shall appear before the Investigating Officer once in a month on every 4th Saturday between 9.00 a.m. and 11.00 a.m. until filing of the final report.

(c) Petitioners shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence.

(d) Petitioners shall not commit any similar offences while they are on bail.

(e) Petitioners shall not leave India without the permission of the Court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.