Muhammed Rihaf vs State Of Kerala

Dr. Kauser Edappagath, J

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

The applicant is the accused No.5 in Crime No.238/2022 of Valanchery Police Station. The offences alleged are punishable under Sections 22(c), 29(1) and 27(A) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act')

The prosecution case, in short, is that on 1.5.2022 at about 4 pm near Valanchery Gale Office, the accused Nos. 1 to 3 were found in possession of 163 grams of MDMA in a car bearing No.KL 55 AA 8560 and the fund for the purchase of the said contraband article was provided by the remaining accused, including the applicant.

I have heard Sri. Leo Lukose, the learned counsel for the applicant and Smt. S. Rekha, the learned Senior 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 crime was registered initially against the accused Nos. 1 to 3 alone. Admittedly, no contraband article was seized from the possession of the applicant. The applicant and the remaining accused were arrayed as accused subsequently. The only allegation against the applicant is that, a sum of ₹45,000/-was transferred to his account by the accused No.4 purportedly for the purchase of MDMA involved in the case. The investigation further revealed that the said sum of ₹45,000/- was in turn transferred to the account of the accused No.6 and then to the account of the accused No.7. However, there is no specific material to suggest that ₹45,000/- transferred to the applicant's account by the accused No.4 was again transferred by him to the accounts of the accused No.6 and then to the accused No.7 for the purpose of purchase of contraband involved in the case. Admittedly, the accused No.4, the applicant and remaining accused are friends. The counsel for the applicant submitted that there are other financial transaction between them. Considering all these facts, I am of the view that the twin conditions of Section 37 of the NDPS Act are not attracted so far as the applicant is concerned. The applicant is in custody since 28.1.2023. For all these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose. Hence, the applicant is entitled to be released on bail.

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

(i) The applicant shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.

(ii) The applicant shall fully co-operate with the investigation.

(iii) The applicant shall appear before the investigating officer between 10.00 a.m and 11.00 a.m. every Saturday until further orders. He shall also appear before the investigating officer as and when required.

(iv) The applicant shall not commit any offence of a like nature while on bail.

(v) The applicant shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The applicant shall not leave the State of Kerala without the permission of the trial Court.

(vii) The application, if any, for deletion/modification of the bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.