Muhammad Salash vs State Of Kerala

Dr. Kauser Edappagath, J

This application is filed under section 439 of the Code of Criminal Procedure seeking regular bail.

The applicant is the accused No.5 in Crime No.1404/2023 of Kundara Police Station. The offences alleged are punishable under Sections 8, 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act').

The prosecution case, in short, is that on 14/7/2023 at around 10.50 a.m, the applicant, along with the other accused, were found in possession of 85.250 grams of MDMA while they were travelling in a car bearing Regn.No.KL-02/AD-0004, and thereby committed the offences.

I have heard Sri.M.Rajesh, the learned counsel for the applicant and Sri.C.K.Suresh, the learned Public Prosecutor.

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 was remanded to judicial custody on 14.7.2023. A perusal of the case diary would reveal that the accusation against the applicant is very serious, and it prima facie shows a premeditated criminal act on his part. The applicant along with accused Nos.1 to 4 were admittedly travelling in the car. As per the prosecution version, 4.670 grams of MDMA was seized from the possession of accused No.5. The learned counsel for the applicant submitted that the quantity of MDMA seized from the possession of the applicant is only an intermediate quantity, and hence, the rigour under Section 37 of the NDPS Act would not apply. I cannot subscribe to the said argument. Apart from that, 63.400 grams of MDMA was seized from the car. The quantity of MDMA seized from the body of the applicant is only 4.670 grams. The learned counsel for the applicant submitted that there is total violation of Section 50 of the NDPS Act. On the other hand, the learned Public Prosecutor submitted that there is compliance of Section 50 of the NDPS Act. The said question need not be gone into inasmuch as 63.400 grams of MDMA, which is a commercial quantity, was seized from the car. Since the quantity involved is commercial quantity, the jurisdiction of this Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. Bail can be granted in a case where there are reasonable grounds to believe that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The counsel for the applicant is not able to point out the existence of any such facts or circumstances as are sufficient to justify recording a finding that he is not guilty of the offences charged.

Considering the submission and after having gone through the materials on record, and also considering the gravity of offences, I am of the view that the applicant cannot be released on bail at this stage. The bail application, accordingly, is dismissed.