Noushad K.V vs State Of Kerala

Mohammed Nias C.P.J

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

The petitioner is the second accused in CR No. 11/2023 of Excise Range Office, Nilambur, which was registered for the offences punishable under Section 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The allegation against the petitioner is that on 13.03.2023 at 6.30 p.m., at Palad desom in Vazhikkadavu amsom, A1 to A3 was found to have transported 52.5 grams of MDMA in a car bearing registration No. KL 52 S 4918, and thereby committed the above offence.

Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor for the State.

Learned counsel for the petitioner argues that though the petitioner travelling along with A1 in the car belonging to A1, there is no conscious possession as the drug was kept inside the infotainment system. It is also submitted that initially prosecution proceeded based on the statement of A1, that as instructed by A2, A1 had transferred Rs.42,000/-. But later it was found that Rs.42,000/- was transferred to one Aboobacker Siddique and that payment was effected as a repayment of the loan taken by A1, and thus Aboobacker Siddique was removed from the party array. It is also submitted that there is a violation of Section 52A of the NDPS Act as well as Rules 9 and 10 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. It is pointed out that the sample was sent on 27.3.2023 while the incident was on 13.3.2023.

Opposing the bail application the learned Public Prosecutor submits that the bank transaction and the call details show the active involvement of A2 along with other accused. It is pointed out that it is a case of spot arrest and active involvement of this accused with other accused before the crime is proved. Since commercial quantity is involved, the rigour of section 37 applies. It is also his argument that violation of Section 52A is a matter of evidence and need not be considered at the stage of trial.

Having considered the rival submissions and perusing the report submitted by the prosecution, which shows that the petitioner along with other accused had gone to Bangalore on 12th and 13th March 2023 and their presence was seen from the CDRs and tower location. The statement of the accused also pointed out the sequence of the events. Even if the contention of the petitioner is accepted that as instructed by him payment was made to one Aboobakcer Siddique, who had nothing to do with the crime, the other evidence, prima facie, shows his involvement. In view of the contention of the petitioner that there was a delay in sending the contraband to the magistrate court, a report was called for on 11.12.2023. As per the instructions received from the JFCM, Nilambur it was stated that the contraband was received on 14.3.2023 afternoon. The incident as stated above is on 13.03.2023. Therefore the contention of violation of Section 52A also cannot be accepted at this stage. The discussion, however, would prima facie show the involvement of the petitioner in the crime, spot arrest, and commercial quantity involved, the rigour of Section 37 of the NDPS Act also applies. Accordingly, I am not inclined to consider the request for bail. It is also made clear the above observations are made only for consideration of the bail application. It will be open to the petitioner to take up all the contentions available under law in the trial.

Accordingly, the bail application is dismissed.