Renjith vs State Of Kerala

Mohammed Nias C.P., J

The second accused has filed B A No.5745/2023 while the third accused filed BA No.8646/2023, the seventh accused filed BA No.9195/2023 and the tenth accused filed BA No.9735/2023 in Crime No. 1358/2022 of Thalayolaparambu police station, Kottayam district registered alleging offences punishable under Sections 20(b)(ii)C, 22(b), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, have filed these applications u/s 439 of the Code of Criminal Procedure seeking regular bail

The gist of the prosecution case is that on 09.10.2022 at about 8.25 a.m. the Sub Inspector of Police, Thalayolaparambu Police Station while conducting vehicle checking at Konginimukku in Mittayikunnam Kara of Vadayar Village on ErnakulamThalayolaparambu public road, accused Nos.1 and 2 came in a blue Ford car bearing registration No. KA 3 NB 3645 from Ernakulam side. 1st accused was the driver and the 2nd accused was travelling in the car. The detecting officer had allegedly received previous information about transporting of ganja for sale. Therefore accused Nos.1 and 2 were searched, during the search 1.3 gms of MDMA was seized from the 2nd accused whereas mobile phones, money, ATM cards etc. were seized from the 1st accused. On searching the vehicle 3 kgs of dried ganja was seen kept in 45 packets in 4 sacks. Thereupon the contraband items were seized and accused Nos.1 and 2 were arrested from the spot. Thus the above crime was registered against them.

Learned counsel for the petitioners and the learned Public Prosecutor were heard.

The allegation against A2 is that he was found in possession of the contraband while being transported in the car. That apart, 1.3 grams of MDMA was seized from his body. The allegation against A6 was that he is the wholesale dealer from whom A1 and A2 purchased. There are proofs for the money transaction between him, A3, A5, A8 and CW9. The allegation against A7 was that A7 transferred the amount to A2 and A3 and the call data records also show there is frequent interaction with A3. He also has an antecedent under the NDPS Act. The allegation against A6 is again that he had several financial transactions with other accused, in particular, A5, A7, A8 and CW9. The allegation against A7 is that he got the contraband for A2 and A3 and there are financial transactions with the accused as well. He also has an antecedent under the NDPS Act. The charge against A10 is that he harboured A4, who is still absconding and there are financial transactions between him and A4.

The learned Public Prosecutor has filed a report specifying the role of each accused. It is to be seen as stated above that the role of A2 is clear that in as much as the contraband was seized from the car in which he was travelling along with A1 and 1.3 grams of MDMA was also seized from his body. Likewise, the allegation against A7 also shows his involvement as much as there is financial transaction and call data records also evidence the same. There is also an NDPS antecedent against him. As regards A6 he is the one who is found on investigation as the wholesale dealer who had financial transactions with other accused, in particular, A5, A6, A8 and CW9.

Though the learned counsel for the above accused took a contention that the money which they transferred does not match with the quantity of contraband, I am not inclined to accept the said contention. The involvement of the above accused is clear from the facts narrated above and given that commercial quantity is involved, the rigour of Section 37 of the NDPS Act applies, they cannot be granted bail. The parity of claim with respect to A8 and A9 to whom bail was granted by this Court as per order in BA Nos.7476/2023 and 3023/2023 respectively cannot come to their rescue as their roles are not the same as the roles of these accused. Accordingly, I dismiss BA Nos.5745/2023, 8646/2023 and 9195/2023.

As regards A10, the specific allegation is that he had helped A4 by arranging accommodation in Mangalore to flee from the police, the same being stated in the remand report, Annexure 4. It is also pointed out that there are transactions between him and A4. Learned counsel points out that he has the said transaction with A4 even from the year 2021 onwards as he is a close friend and A4 used to come to Mangalore to buy spare parts for excavating machines used in his shop and at that time the petitioner was a III year Nursing student at City College, Mangalore. There is no allegation against him of having any knowledge of the fact that A4 was engaged in narcotic dealings. He does not have any other transactions with any other accused, no contraband was seized from his possession, and there are no materials available on record to connect the accused with the crime except the confession of A1 and A2, which prima facie is inadmissible. It is also to be noted that there is no prosecution case that A10 was conspired or abeted with other accused. Apart from the transactions with A4, for which the petitioner has given an explanation, which is prima facie, acceptable there are no dealings with any of the other accused. This seen along with averments made against A10 in the final report which are indicated above, I find prima facie merit in the contentions of the learned counsel for A10. It is also pointed out that there are no other antecedents reported against A10. Facts being so, I will be justified in releasing the petitioner on bail as there are necessary materials to record the satisfaction of the twin conditions contemplated under Section 37 of the NDPS Act.

Accordingly, the petitioner in B.A.No.9735/2023 (A10) is granted bail subject to 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 appear before the trial court as and when required.

iii) The petitioner shall not commit any offence of a 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 not leave India without the permission of the trial Court.

vi) The petitioner shall surrender his passport, if any, within seven days from the date of his release before the Court concerned and if the release of the passport is required at a later period, the petitioner shall be at liberty to move an appropriate application for the same before the court having jurisdiction. If he has no passport, he shall file an affidavit to that effect before the court concerned, on the date of execution of the bond or within three days thereafter.

vii) The petitioner shall furnish his present address along with her mobile number to the Court concerned as well as to the investigating officer.

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

Accordingly, BA Nos.5745/2023, 8646/2023 & 9195/2023 are dismissed and BA No.9735/2023 is allowed.