Muhammed Rafi vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 1st accused in Crime No.868/2023 of the Pandikad Police Station, Malappuram, alleging him to have committed the offences under Sections 20(b)(ii) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested on 14.11.2023.

The prosecution case, in brief, is that: the 1st accused had purchased 8.910 kilograms of ganja for the purpose of selling it to the 2nd accused. The accused was found in possession of the contraband article in a vehicle. Thus, the accused have committed the above offences.

Heard; Sri.Ahamed Fazile C., learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the respondents.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. He has been in judicial custody since 14.11.2023. The quantity involved is only intermediate quantity and the petitioner is entitled to statutory bail after a period of 60 days. Therefore, the petitioner's detention is unnecessary, particularly taking note of the fact that the investigation in the case is complete. Hence, the application may be allowed.

The learned Public Prosecutor, on instructions submitted that the petitioner was arrested on 14.11.2023. The investigation of the case is practically complete and the petitioner has no criminal antecedents.

Indisputably, the petitioner was arrested on 14.11.2023. He has been implicated on the basis of the confession made by the 2nd accused. The alleged quantity is 8.190 kilograms of ganja which is an intermediate quantity.

In Dheeraj Kumar Shukla v. The State of UttarPradesh [2023 KHC 6545], the Hon’ble Supreme Court has categorically held that the rigour under Section 37 of the NDPS Act can be diluted, if the accused has no criminal antecedents.

After bestowing my anxious consideration to the materials placed on record, particularly taking note of the fact that the petitioner has no criminal antecedents and he has been in judicial custody since 14.11.2023, and the investigation of the case is particularly complete, I am of the definite view that the rigour under Section 37 of the Act stands diluted and there is no likelihood of the petitioner committing a similar offence. Hence, the petitioner is entitled to be released on bail.

In the result, the application is allowed, by directing the petitioner to be released on bail on his executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every alternate Saturdays between 9 a.m. and 11 a.m for a period of three months or till the final report is filed, whichever is earlier. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while they are on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State of Delhi and another [2020 (1) KHC 663].