Sameer vs State Of Kerala

P.V.Kunhikrishnan, J

The petitioner is the 1st accused in Crime No.91 of 2021 of Central Police Station, Ernakulam. The above case is registered alleging offences punishable under Sections 20(b) (ii)(C), 22(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short NDPS Act).

The prosecution case is that the petitioner was residing in an apartment on the 2nd floor of Njarakkattu Residency in Kunnappally Lane in Nettipadam Road, Ernakulam. On 30.01.2021, the police got information that the selling of narcotic drugs is going on in the above apartment. The information was recorded in the C.D. by the officer concerned and proceeded to the place after complying with other formalities. When the police party reached the apartment, the 1st accused opened the door. It was found the 2nd and 3rd accused were also present in the apartment. After performing the legal formalities, the body of the petitioner and the other accused were searched. The apartment was also searched. It is the prosecution case that 44.56 gms of MDMA, 1286.51 gms of Hashish oil, and 340 gms of Ganja were seized. It is also the case of the prosecution that the 2nd accused was found in possession of 1.93 gms of Hashish oil and the 3rd accused was found in possession of 1.88 gms of Hashish oil. Hence, it is alleged that the accused committed the offence.

Heard the counsel for the petitioner and the Additional Director General of Prosecution Sri. Gracious Kuriakose.

The counsel for the petitioner submitted that the bail application filed by this petitioner was dismissed by this Court as per Annexure A2 order. Subsequently, the 3rd accused filed a bail application before this Court and another bench of this Court granted bail to the 3rd accused. The order is procuded as Annexure A4. The counsel submitted that even according to the prosecution, no contraband is seized from the physical possession of the petitioner, and the contraband was siezed only from the physical possession of accused Nos.2 and 3. In addition to that, the contraband were seized from the apartment in which all the three accused were present. In such circumstances, the more serious allegation is against the 2nd and 3rd accused and even then the 2nd accused is released on bail. Therefore, the petitioner also may be released on bail is the contention.

The  Additional  Director  General  of  Prosecution vehemently opposed the bail application. The Additional Director General of Prosecution submitted that the apartment was taken on rent by the 1st accused and therefore, it is clear that the contraband was in conscious possession of the petitioner, who is the 1st accused. The Additional Director General of Prosecution also submitted that Annexure A4 order was passed by this Court, because the 3rd accused was a lady and that is why this Court granted bail. The Additional Director General of Prosecution also conceded that there is nothing in Annexure A4 order to show that the rejection of the bail application of the 1st accused is mentioned in that order. The Additional Director General of Prosecution further conceded that after the analyst report came, it is found that the contraband seized from the apartment is not MDMA and it is Methamphetamine.

When this bail application came up for consideration, this Court directed the Additional Director General of Prosecution to verify whether the Prosecutor concerned bring to the notice of the learned Judge about the dismissal of the bail application of this petitioner as evident by Annexure A2. After getting explanation from the officer concerned, the Additional Director General of Prosecution submitted that the Prosecutor concerned was not aware that the bail application of the 1st accused was rejected and that is why it was not brought to the notice of the learned Judge. The Additional Director General of Prosecution also submitted that the release of the 3rd respondent is for the special reason mentioned in Annexure A4 order. The Additional Director General of Prosecution also takes me in Paragraph 5 read with Paragraph 9 of Annexure A4 order and submits that because of the peculiar circumstances mentioned in those paragraphs, the 3rd accused is released on bail. Therefore, this Court may not follow Annexure A4 order and grant bail to the 1st accused.

This Court considered the contention of the petitioner and the Prosecutor. I am totally dissatisfied with the way in which the case is presented by the prosecution before the learned Judge who passed Annexure A4 order. It is the duty of the Prosecutor to submit before the court concerned that the bail application of one of the accused is rejected. The Prosecutor should produce the order if possible before the learned Judge. The explanation given by the Prosecutor is that the Prosecutor was not aware of the dismissal of the bail application filed by the 1st accused. If that is the case the investigating officer who gave instructions to the Prosecutor is prima facie liable. That is to be enquired into by the officer concerned.I leave it there.

The allegation against this petitioner is that he was there in the apartment from where the contraband articles were seized. Admittedly, there is no case with prosecution that any contraband articles are seized from the physical possession of the petitioner who is the 1st accused. It is also an admitted fact that the contraband articles were seized from the physical possession of 2nd and 3rd accused. Both of them are released on bail. Simply because the apartment is taken on rent by the 1st accused, this Court at this stage may not be able to presume the involvement of the petitioner. It is true that I have considered the matter in detail in Annexure A2 order and rejected the bail application of this petitioner. But this Court in Annexure A4 order granted bail to the 3rd accused with certain observations. It will be better to extract the observations of the learned Judge in paragraph 9 of Annexure A4 order.

“9. After going through the materials on record, I feel that the arguments touching the non compliance of procedural formalities are really formidable. But out of the fear that if this Court dilate on these aspects, that may ultimately influence trial and therefore I do not venture to expand the points further. Suffice it to say that there are procedural lapses on the part of the detecting officer. Therefore, this Court is inclined to grant bail to the petitioner who is in custody from 30.01.2021 onwards. Moreover, she is a lady only 23 years old with no antecedents and hence she shall be released on bail on the following conditions:-”

In the light of the same, I think there is no justification in denying bail to the petitioner. I think the petitioner is also entitled to bail. Moreover, the petitioner is in custody from 31.01.2021. Now the petitioner is in custody for one year and 4 months. In the bail application, the petitioner stated that, challenging Annexure A2 order, the petitioner approached the Apex Court. When this bail application came up for consideration earlier, this Court observed that unless the proceedings pending before the Apex Court is concluded, this Court will not consider this bail application. Now the counsel submitted that, the case pending before the Apex Court is withdrawn.

It is also a fact that the final report is filed before the court and the matter is pending trial.

In such circumstances, I think there is justification in granting bail to the petitioner in the light of Annexure A4 order and also in the light of the period of detention of the petitioner. Therefore, this bail application is allowed.

i) The petitioner shall execute 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 jurisdictional court; one of the sureties shall be a near relative.

ii) The petitioner shall surrender his passport before the trial court within ten days from today, if he does not possess a passport, an affidavit shall be filed to that effect before the trial court within the said period.

iii) The petitioner shall not try to contact or influence the witnesses or tamper with evidence;

iv) The petitioner shall not involve in any crime during the bail period;

v) The petitioner shall appear before the trial court as and when required;

vi) The petitioner 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 petitioner, the jurisdictional court will be at liberty to cancel the bail in accordance with law.