Sumesh Mohan vs State Of Kerala

Mohammed Nias C.P., J

This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail.

The allegation against the petitioner is that, on 19.08.2022 at 11.30 a.m., A1 to A3 were found to have transported 21.450 kilograms of Ganja in a car at Vasuppadi on Thalgalpadi-Kumbidi road and A4 and A5 aided them to commit the offences. The petitioner was arrested on 19.8.2022 and has been in judicial custody since then.

Heard Sri. Thomas Anakkallunkal, the learned counsel appearing for the petitioner, and Sri. P.G. Manu (Mamalassery), the learned senior Public Prosecutor for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. It is pointed out that no contraband articles were recovered from the physical possession of the petitioner. The petitioner has no criminal antecedents. It is also submitted that the 5th accused in the crime has been granted bail as per orders of this Court dated 4.9.2023 in BA No.4684 of 2023, and therefore, he claims parity and seeks bail.

The learned Public Prosecutor opposes the prayer sought by the petitioner. It is pointed out that the petitioner was arrested along with the contraband articles, and the investigation in this case is already over. The role of the petitioner is very much evident from the records, and it is pointed out that since the quantity involved is a commercial quantity that too in the form of a variety of narcotic drugs, under no circumstances the release of the petitioner can be ordered.

It is seen that the petitioner herein/accused No.1 and contraband articles were seized in a car that belongs to A3 and driven by the petitioner. As regards the 5th accused, who has been granted bail, this Court has specifically noted that there were no antecedents against the said accused and that A5 was arrested on 31.8.2023 and relying on the judgment in Fasil V. State of Kerala [2023 (3) KHC 212] bail was granted. In the instant case, the first accused/the petitioner herein is involved in another crime under the NDPS Act itself, Crime No.35 of 2022 of the Walayar Police Station, where the allegation is that the petitioner herein, along with another person, was found in possession and transporting 17.250 kilograms of Ganja in a car.

Though the learned counsel for the petitioner submits that he was granted bail in the said case, the fact that apart from the instant case, there is one more case under the NDPS Act is not in dispute. In such circumstances, the petitioner cannot claim parity with A5, to whom this Court granted bail. Since there are materials to prima facie make out the offences alleged against the petitioner and no grounds have been made out to get over the rigor of Section 37 of the NDPS Act, given the fact that he is involved in another case under the NDPS Act itself, the petitioner is not entitled to get bail, and the same is accordingly dismissed.