Muhammed Ansar vs State Of Kerala

Dr. Kauser Edappagath, J

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

The applicant is the accused No.3 in Crime No. 710/2022 of Angamaly Police Station. The offences alleged are punishable under Sections 22(c), 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act').

The prosecution case, in short, is that the applicant and accused Nos. 1 and 2 were found transporting 0.63 gms of Methamphetamine in a car bearing registration No.KL-07 BW-634 on 08.07.2022 at 2.30 pm. Thereafter, on the basis of the confession statement given by accused No.1, the respondent No.2 conducted a search on his apartment, and seized 376.08 grams of methamphetamine. It is alleged that these contraband articles seized on 08.07.2022 and 09.07.2022 were procured by accused Nos. 1 to 4 from Bangalore.

I have heard Smt. Saipooja, the learned counsel for the applicant and Smt. Nima Jacob, 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 was remanded to judicial custody on 08.07.2022. 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 case diary reveals that prima facie there are materials on record to show the involvement of the applicant in the crime. The material collected by the investigating agency reveals that the contraband seized on 08.07.2022 and 09.07.2022 are procured by accused Nos. 1 to 4 from Bangalore. Thus the total quantity involved is a commercial quantity. Since the quantity involved is a 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 for believing that the accused is not guilty of such offence and that his is not likely to commit any offence while on bail.

The learned counsel for the applicant last time submitted that there was non compliance of Section 42 of the NDPS Act. However, it was found that there is substantial compliance of Section 42(1) of the NDPS Act. This time, the learned counsel submitted that there is non compliance of Section 41(2) of the NDPS Act. It is submitted that there is no authorisation by the Dy.S.P Narcotic Cell, Aluva who received information regarding the possession of narcotic drug by the accused, to the detecting officer. However, reading of Annexure 3 seizure mahazar would show that the Dy.S.P. Narcotic Cell, Aluva had authorised the detecting officer over phone. Section 41(2) does not state that there should be a written authorisation. That apart, whether a written authorisation was there or not is all matter of evidence which can only be decided at the time of trial. Thus, I find no merit in the submission of the learned counsel.

On going through the materials on record, I am afraid that there are no substantial or probable cause for believing that the applicant is not guilty of the offences charged. The applicant has not been 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 gravity of the offences and circumstances mentioned above, I am of the view that the applicant cannot be released on bail at this stage. The bail application is hence dismissed.