Rameez Sushad vs State Of Kerala

K.Haripal, J

This is an application filed under Section 439 of the Code of Criminal Procedure. Petitioners are accused Nos.3 and 4 respectively in crime 139 of 2021 of Kalpancherry police station in Malappuram district. They were arrested for the case on 22.05.2021 by the Inspector of Police, Kalpakancherry police station alleging offence under Sections 22(b), 22(c), 29 and 20(b)(ii)A of the NDPS Act. The allegations of the prosecution in short are as follow: On 22.05.2010 the Inspector of Police received reliable information about some youngsters dealing in narcotic drugs and thus he found the accused Nos.1 and 3 to 5 sitting in a car, KL-65-M-3339 found parked n the side of the Vylathur-Karinkapara public road near the Ponmundam KSEB office and the 2nd accused on a motorcycle KL-55-W-6874. Both the vehicles were stationary; on getting suspicion when the body of the accused were searched, the 1st accused was found carrying 85 grams of MDMA and 100 grams of ganja in his waist. He was sitting on the navigator's seat of the car; 12 grams of MDMA was found in the pocket of the 2nd accused. Thus, altogether 97 grams of MDMA and 100 grams of ganja were seized from the accused persons and the crime was registered and all the accused were produced before Court and since 23.5.2021 they are in judicial custody.

The earlier application for bail moved by the 3rd accused/the 1st petitioner was dismissed by this Court by Annexure-III order dated 22.7.2021. Similarly, the application of the 2nd petitioner moved before the Special Court, Manjeri was dismissed by Annexure-II order.

I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.

The learned counsel for the petitioners submits that the marriage of the 2nd petitioner/the 4th accused was held on 20.5.2021 and the 1st petitioner was carrying him along with other accused persons to the studio for getting photographs of the marriage; on the way the 1st accused, who was acquainted to them also joined them in the car; the accused persons did not know that he had carried contrabands in his possession and thus when they were moving to the studio, on the way they were intercepted by the police, but nothing was seized from the possession of these petitioners and they have been implicated on the allegation of criminal conspiracy, that they do not have criminal antecedents to their credit. The car belonged to the 2nd petitioner and the 1st petitioner was driving the vehicle. The learned counsel reiterated that the 1st petitioner had come from Chennai to attend the marriage of the 2nd petitioner, merely for the reason that so much quantity of contraband was seized from the possession of accused Nos.1 and 2 they may not be put behind bars with no reasons, that there is absolutely nothing to suspect any conspiracy having been hatched among them.

The learned Public Prosecutor has strongly opposed the application. According to him, all of them were moving together. The 1st petitioner was the driver of the car and the car belonged to the 2nd petitioner and they were found in suspicious circumstances and at least now there are strong reasons to believe that they were dealing in contraband items carried by the 1st accused.

No doubt, 97 grams of MDMA was seized from the possession of accused Nos.1 and 2. The 1st accused had carried ganja also. All the accused were found together at the place in suspicious circumstances. Both the vehicles were stationary; growing suspicion, when questioned and body search was conducted, the 1st accused had carried so much quantity of contraband in his possession. The 2nd accused was having 12 grams of MDMA with him. So the Public Prosecutor strongly opposed the application for bail. The question whether they were party to any conspiracy etc. is still under investigation. At this point of time it is not appropriate to say that the petitioners were part of the conspiracy. Annexure V document indicates that the marriage of the 2nd petitioner was held on 20.05.2021, only two days prior to the alleged detection; but he was found along with other accused persons in suspicious circumstances and his role in the case is under investigation. It is also submitted that the 1st petitioner had come from Chennai for attending the marriage. Nothing was seized from the possession of the petitioners. Nothing was seized from the car also. Actual culprits are accused 1 and 2 who had carried MDMA. There are no materials available to say, at least at this stage, that the petitioners had shared a common intention to possess the contraband. At the most it can only be thought that they are also users of the substance and had carried the 1st accused with them for procuring the same. Embargo under Section 37 of the Act cannot work against them for the mere reason that they were found in the company of accused 1 and 2. Moreover, no antecedents is noticed against them.

Both the petitioners are in judicial custody for the last 144 days. Therefore, they shall be released on bail on the following conditions:

i) The petitioners shall execute bond for Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court;

ii) They shall not try to contact or influence the witnesses or tamper with evidence;

iii) They shall surrender their passports before the jurisdictional court within ten days from the date of release; if they do not possess passports, an affidavit to that effect shall be filed;

iv) They shall not involve in any crime during the period on bail;

v) They shall appear before the Investigating Officer/trial court as and when required;

vi) They shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19 pandemic;

vii) If any of the above conditions are violated by the petitioners, the jurisdictional court will be at liberty to cancel the bail in accordance with law.

This bail application is allowed as above.