Shahad Saman vs State Of Kerala

K.Haripal, J

Petitioner is the 2nd accused in crime No.169/2021 of Nallalam police station, which was registered on 05.05.2021 alleging offence under Section

22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the NDPS Act. The allegation is that, that day the Sub

Inspector and party of Nallalam police station had found the petitioner who is the 2nd accused, along with the 1st accused, in possession of 12.050

grams of MDMA. To be more specific, the 1st accused had possessed 8.250 grams of MDMA whereas the petitioner was found in possession of

3.800 grams, thus taking the quantities together the crime was registered under Section 22(c) of the NDPS Act, both were arrested from the spot

along with the contraband and since then he is in judicial custody. This is the third application for bail moved by the petitioner. The first application was

dismissed by this Court by order dated 13.08.2021 on B.A. No.5562/2021. Both of them moved again with B.A. 8545/2021. Then the Court found that

the quantities held by the petitioners should be reckoned separately. In that case, the 1st petitioner had carried only 8.250 grams of MDMA and he

was granted bail on certain conditions. However, the case of the petitioner was distinguished and taking into account the submission of the learned

Public Prosecutor that he is involved in two other cases under the NDPS Act and taking him as a habitual offender of similar nature, his application

was dismissed. The petitioner has moved again under Section 439 of the Code of Criminal Procedure.

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

At first, the learned counsel for the petitioner disputed the contention that the petitioner is involved in two other cases of similar nature. Then the

Inspector of Nallalam police station was directed to file a statement detailing the cases involved by him. Accordingly, a statement was filed. Going by

the statement it is seen that two cases were registered against the petitioner under the NDPS Act. The first one is crime No.320/2019 of Bepur police

station registered under Section 27(b) of the NDPS Act. The allegation was that on 23.06.2019 he was found smoking ganja beedi in public place and

that was how crime 306/2019 was registered and the final report was laid before the Judicial First Class Magistrate's Court-I, Kozhikode as S.T.

777/2019. On 05.09.2019 the petitioner confessed the guilt and paid a fine of Rs.2,500/- before the Court. The second crime was registered on

29.07.2021 as crime No.320/2019 of Bepur police station, also under Section 27(b) of the NDPS Act after finding the petitioner smoking ganja beedi in

public place. That case has been charged before the Judicial First Class Magistrate-V, Kozhikode where the case is pending as C.C.868/2019, and

NBW is pending against the petitioner.

Even though the allegations in crime 320/2019 of Bepur police station and 306/2019 of Panniyankara police station are minor in nature, both under

Section 27(b) of the NDPS Act, two inferences are possible from the report of the Inspector. Firstly, the petitioner has habituated to such offences.

He has an inclination to deal with narcotic drugs and seems to be a regular substance user. Secondly, even though two more cases were registered

against him and he had pleaded guilty in one such case, that did not have any impact in his life and he is not susceptible to any improvement.

All the same, once this Court takes the view that the quantity carried by them should be reckoned separately, the petitioner gets entitled to get

statutory bail as a matter of right, after completing 60 days in judicial custody. The learned counsel also placed reliance on the decision reported in

Bikramjit Singh v. State of Punjab [(2020) 10 SCC 616]. In other words, for two reasons this Court is inclined to grant bail to the petitioner; firstly on

completion of 60 days in judicial custody, on which the charge sheet was laid by the Investigating Officer, the petitioner was entitled to get statutory

bail. Secondly, the allegations in the previous crimes are rather minor in nature. In the light of the same and also having regard to the fact that other

accused person has already been granted bail, the petitioner shall be released on bail on the following conditions:-

i) The petitioner shall execute bond for Rs.1,00,000/-(Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the trial court; one of

the sureties shall be a near relative;

ii) He shall surrender his passport before the trial court within ten days from the date of release; if he does not have a passport, he shall file an affidavit to that effect

within the said period;

iii) He shall not leave Kozhikode district until further orders;

iv) He shall not involve in any such case during the period on bail;

v) He shall report before the Station House Officer, Nallalam police station every Saturday between 7.00 and 11.00 a.m. till the termination of all criminal proceedings

against him;

vi) He shall not try to contact or influence the witnesses or tamper with evidence;

vii) He 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;

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

This bail application is allowed as above.