Sivakrishna vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2nd accused in Crime No.307/2024 of the Kodungallur Police Station, Thrissur, registered against him, for allegedly committing the offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short, ‘the N.D.P.S Act’]. The petitioner was arrested on 23.02.2024.

The crux of the prosecution case is that, on 23.02.2024 at around 15.00 hrs, the detecting officer and party found the accused in suspicious circumstances. While conducting the search, accused 1 and 2 were found in conscious possession of 0.650gms of MDMA stored in a polythene zip lock cover. The accused were arrested then and there at the spot with the contraband articles. Thus, the accused have committed the above offences.

Heard Sri.Sayed Mansoor Bafakhy Thangal, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the respondent.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The offence under Section 22(b) of the N.D.P.S Act will not be attracted against the petitioner. In any given case, the petitioner has been in judicial custody since 23.02.2024, the investigation in the case is practically complete and recovery has been effected. The petitioner does not have any criminal antecedents in committing an offence under the N.D.P.S Act. Moreover, the contraband is of an intermediate quantity. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. It is submitted that the investigation in the case is in progress. She also stated that the petitioner is involved in two other criminal cases for allegedly committing the offence under the Indian Penal Code. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody since 23.02.2024, the investigation in the case is practically complete and the recovery has been effected.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, especially considering the fact that the petitioner has been in judicial custody since 23.02.2024, that the recovery has been effected and investigation in the case is practically complete and further that the contraband involved in the case is of an intermediate quantity, I am of the view that petitioner’s continued detention is not necessary. Hence, the petitioner is entitled to be released on bail.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing 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 court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and Anr. [2020 (1) KHC 663].