Noushid Babu vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), by the 2nd accused in Crime No.215/2024 of the Pandikad Police Station, Malappuram, which is registered against two accused persons for allegedly committing the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested and remanded to judicial custody on 05.03.2024.

The gist of the prosecution case is that : on 05.03.2024, at around 01:15 hours, the accused were found in conscious possession of 19.55 grams of MDMA, which was meant for sale. The 1st accused was arrested on the spot. Subsequently, during the course of the investigation, the 2nd accused was implicated as an accused. Thus, the accused have committed the above offences.

Heard; Sri.Thomas J. Anakkallunkal, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. There is no material to substantiate the petitioner's culpability in the crime. The Investigating Officer has implicated the petitioner in the case solely on the basis of the confession of the 1st accused, which is inadmissible in evidence in view of the law laid down by the Honourable Supreme Court in Tofan Singh vs. State of Tamil Nadu [2020 (6) KHC 111]. In any given case, the petitioner has been in judicial custody for the last 111 days, the investigation in the case is practically complete and recovery has been effected. Furthermore, as per the Chemical Analysis Report submitted by the Regional Chemical Examiner's Laboratory, Kozhikkode dated 01.04.2024 it has turned out that the contraband is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is of an intermediate quantity. Hence, the rigour under Section 37 of the Act does not apply to the facts of the case. Therefore, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the petitioner is a habitual offender, since he is involved in two other crimes including a crime for committing an offence under the Act. If the petitioner is enlarged on bail, there is every likelihood of him committing similar offences. Nonetheless, she did not dispute the fact that the contraband involved in the case is now found to be 'methamphetamine' and not 'MDMA' as per the Chemical Analysis Report referred to above.

The prosecution case is that the 1st accused was found in conscious possession of 19.55 grams of MDMA. During the course of the investigation, it was found that the petitioner is also involved in the case. Consequently, he was implicated as an accused. Admittedly, as per the Chemical Analysis Report, the contraband involved in the case is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is of an intermediate quantity.

On an overall consideration of the facts, rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the contraband involved in the case is of an intermediate quantity, the petitioner has been in judicial custody for the last 111 days, the investigation in the case is complete and recovery has been effected, I am of the firm view that further detention of the petitioner is unnecessary. Hence, I am inclined to allow the application.

In the result, the application is allowed, by directing the petitioner to be released on bail on him 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 Saturday between 9 a.m. and 11 a.m for a period of two 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 he is 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) Application 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 (NCT of Delhi) and another [2020 (1) KHC 663].