Thafseena EC vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.481/2024 of the Arecode Police Station, Malappuram, which is registered against the accused (two in number) for allegedly committing the offences punishable under Sections 22(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 16.04.2024.

The gist of the prosecution case is that: on 16.04.2024, at around 17.30 hours, the accused Nos.1 & 2 were transporting 31.13 grams of MDMA in a car bearing Reg.No.KL-05-AH-4638. The vehicle was intercepted, the accused were arrested, and the contraband was seized on the spot. Thus, the accused have committed the above offences.

Heard;  K.M.  Firoz,  the  learned  counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. There is no material to substantiate the involvement of the petitioner in the crime. In any given case, the petitioner has been in judicial custody since 16.04.2024, the investigation in the case is practically complete,and the recovery has been effected. Moreover, the petitioner has reliably learnt that the contraband article allegedly seized from him is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity. Hence, the petitioner is entitled to be released on bail.

The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also submitted that if the petitioner is let off on bail, there is every likelihood of him committing similar offences. She handed over the chemical analysis report dated 04.06.2024 issued by the Chemical Examiners Laboratory Department, Kozhikode,which shows that the contraband article is 'methamphetamine' and not 'MDMA'. She also did not dispute the fact that the petitioner does not have any criminal antecedents.

The prosecution was lodged against the accused on the allegation that they were found in conscious possession of 31.13 grams of MDMA, which is of a commercial quantity. Now, as per the chemical analysis report, it has turned out that the contraband article is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity. Furthermore, the petitioner does not have any criminal antecedents.

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the contraband allegedly seized from the accused is of an intermediate quantity, that the petitioner has no criminal antecedents, that the petitioner has been in judicial custody since 16.04.2024, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the view that the petitioner’s further detention is unnecessary. Hence, I hold that 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 filed, 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 him 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 another [2020 (1) KHC 663].