Shameem P vs State Of Kerala

K. Haripal, J

The second accused in crime No.119/2021 of Kondotty police station, Malappuram district has moved this application under Section 439 of the

Code of Criminal Procedure seeking his release on bail.

That crime was registered on 14.03.2021 after seizing 15.5 grams of MDMA from the first accused Ridan Basil. Annexure A1 is the copy of the

FIR.

Going by Annexure A2 first information statement given by Vimal V.V. , Sub Inspector of Police, Kondotty police station, that day while he was on

duty, at about 13.55 hours, he got telephonic information that a person is moving in a Thar jeep through Airport road through Kolathur; after sending a

report under Section 42 of the NDPS Act to the Circle Inspector, Kondotty and also after alerting the team members of DANSAF, he proceeded to a

place by name Adivaram and started vehicle checking. Then a black Thar jeep came from the airport side; when the vehicle was signalled to be

stopped, it stopped; immediately one person got out and ran towards the paddy field on the western side of the road. Even though two civil police

officers had chased him, he could not be apprehended. When enquired, Ridan Basil was the driver of the jeep and on getting suspicion that he was

carrying narcotic drugs, his body was searched following the procedural formalities, in the presence of the Tahsildar who had reached there on

request. It was found that he carried two plastic covers, which were taken from the right hand side pocket of his pants. He admitted that it is MDMA

which is a narcotic drug. When weighed, it contained 15.5 grams. Thus, he was arrested and the matter was reported to the Circle Inspector and the

crime was registered.

On the basis of the information obtained from the said Ridan Basil, the crime was registered arraying the petitioner Shameem as the second

accused. He could not be arrested. Later, he was arrested on 01/05/2021 from Edappally in Ernakulam and since then he is in judicial custody. Now

the petitioner has sought for his release on bail under Section 439 of the Cr.P.C.

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

According to the learned counsel, the petitioner was arrested solely on the basis of the confession statement given by the first accused, which is not

admissible in evidence. On this he relied on the decision reported in Tofan Singh v. State of Tamil Nadu [2020 (6) KHC 111 (SC)]. According to the

learned counsel, nothing was recovered from the possession of the petitioner; merely for the reason that the first accused had given such a statement,

he cannot be roped in. In the absence of any recovery from the possession of the petitioner, he should not have been arrayed as an accused. The

counsel also relied on the decisions in Dinesh Kumar alias Billa v. State of Himachal Pradesh [2020 KHC 5234], Sugata Mondal @ Sougata Mondal

v. Unknown [2019 SCC Online Cal. 248], Jai Bhagwan v. N.C.B. [Manu/DE/1540/2020] and Muhammed Ameen & Another v. NCB, Cochin [2020

(1) KHC 645]. The learned counsel also submitted that even though the alleged incident had happened on 14.03.2021, he was arrested only on

01.05.2021. Meanwhile, he had occasion to travel to Bangalore with police officials, in proof of which he has relied on Annexures A3 to A8

photographs and geolocation shots. In the light of such a statement, the learned Public Prosecutor was directed to give a report by the Investigating

Officer as to how the petitioner happened to be in the company of the policemen before 01.05.2021. The learned Public Prosecutor has stated that,

that report would prove the cunning nature of the petitioner. After having gone absconding, for diverting and misguiding the investigation, the petitioner

was following the police party who had gone to Bangalore in connection with some other case, represented himself as one Muhammed Ali and made

occasional appearance before that police party and that was how such photographs happened to be taken.

It is true that when the police party had apprehended the first accused, one person had got out of the vehicle and ran away from the scene. On the

basis of the information furnished by the first accused, the name of the petitioner was shown as second accused. Of course, the petitioner has no case

that his name was shown wrongly by the first accused with the intention of roping him in a false case. He has no case that the first accused has any

reason to be in inimical terms with him. That means, it is quite patent that the petitioner was travelling with the first accused at the time when the

police had intercepted the vehicle. The reason for his getting out and vanishing from the place is not known. No doubt it is a matter for drawing

adverse inference. All the same, that will not advance the case of the prosecution. Unless concrete evidence is made out against the petitioner, he

cannot be legally proceeded against.

Here, certain circumstances cannot be ignored by the court. Firstly, nothing has been recovered from the possession and power

of the petitioner. Merely for the reason that the offensive articles were taken from the person of the first accused, no adverse inference can be drawn

against the petitioner. Secondly, no contraband was seized from the jeep also in which he was travelling. Even assuming that since section 29 of the

NDPS Act also is alleged against the petitioner and the other accused, that will not justify to attract the embargo under Section 37 of the Act. It is true

that the learned Public Prosecutor has opposed the application. But there must be reasonable ground to believe that the petitioner is not guilty of such

an offence and he is not likely to commit any offence while on bail. As mentioned earlier, in the absence of any recovery from the possession of the

petitioner, and also from the vehicle in which he was travelling, he cannot be held liable for the act, if any, committed by his co-passenger or the driver

of the vehicle. Prima facie materials are wanting to say that the first accused was carrying so much quantity of MDMA on the basis of a criminal

conspiracy hatched by them.

To sum up, in the absence of any legal evidence, at least for the present purpose, his continued detention cannot be justified. The prosecution has no

case that he has any criminal antecedents. In the above circumstances, the petitioner can be released on bail on the following conditions:

i) 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 of the petitioner;

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

iii) He shall not leave Malappuram revenue district without permission of the jurisdictional court;

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

v) He shall appear before the investigating officer/trial court as and when required;

vi) 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;

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.

This bail application is allowed as above.