Mujeeb Rahman vs State Of Kerala

Ziyad Rahman A.A, J

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

The petitioner is the 2nd accused in Crime No. 61/2022 of Town North Police Station, Palakkad. The offences alleged against the petitioner and the other accused are punishable under Sections 20(b) (ii)(C) read with Section 29 of the NDPS Act.

The prosecution case is that, on 15.01.2022, at about 10.30 a.m, the petitioner along with other accused were found in possession of 3.063 kilograms of Hashish oil while they were transporting the same on a motorcycle bearing registration No.KL 56-M-8401. The petitioner and the 1st accused were arrested on the same day and since then, he has been under judicial detention. Even though the petitioner approached this Court on an earlier occasion, the same resulted in dismissal as evidenced by Annexure A1. This is the second application for regular bail.

Heard, Sri. Sam Isaac, the learned counsel appearing for the petitioner and Sri.Jacob E Simon, the learned Public Prosecutor, appearing for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. It was pointed out that he has been in judicial custody since 15.01.2022 and more than one year and ten months have elapsed. It was also pointed out that the 1st accused against whom similar allegations are raised has already been granted bail as per order dated 27.11.2023 in B.A No. 9525/2023 which is produced as Annexure A2.

On the other hand, the learned Public Prosecutor opposes the said application by pointing out that, there are ample materials indicating the role of the petitioner and the contraband article was recovered from his possession. Therefore, the learned Public Prosecutor seeks for dismissal of the application.

I have carefully gone through the records. Of course it is true that, the contraband article was recovered from his possession. However, the 1st accused who was along with the petitioner at the time of the seizure of the contraband article was already granted bail by this Court as per Annexure A2 order. It is discernible from Annexure A2 that, the said order was passed mainly taking note of the fact that the trial of the case is likely to take some time. Before passing Annexure A2 order, this Court called for a report from the Additional District Court-III, Palakkad where the matter is pending as S.C No.688/2022 and after being convinced of the possible delay in disposal of the case, the bail was granted to the 1st accused. This Court also relied on Fazil v. State of Kerala [2023 (3) KHC 212], wherein certain circumstances under which the rigour under Section 37 of the NDPS Act would get diluted are also mentioned. Since the 1st accused is already granted bail, for the sake of parity, the petitioner is also to be granted bail, as the allegations against both the accused are same. No criminal antecedents of the petitioner were also brought to my notice. In such circumstances, I deem it appropriate to grant bail to the petitioner and accordingly, this application is allowed.

In such circumstances, the application is allowed on the following conditions:-

i) The petitioner 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 Court.

ii) The petitioner shall also appear before the jurisdictional court as and when required.

iii) The petitioner shall not commit any offence of similar nature while on bail.

iv) The petitioner shall not make any 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.

v) The petitioner shall surrender his passport before the jurisdictional court. If the petitioner does not have a passport, an affidavit to that effect shall be filed before the jurisdictional court.

vi) The petitioner shall not leave India without the permission of the trial Court.

In case of violation of any of the above conditions, the jurisdictional Magistrate/Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with law.