Thoufeek M.Y vs State Of Kerala

Mohammed Nias C.P., J

This application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail.

The petitioner herein is the second accused in crime No. 777/2022, registered by the Station House Officer, Kondotty Police Station, against the petitioner/accused and four others alleging commission of an offence punishable U/S 22(C), and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’).

The prosecution case is that on 28.09.2022 at 12.00 midnight, at Mongam Hill Top, A1 to A5 were found transporting 92.3 grams of MDMA in a car bearing registration No.KL 71 H 7859, and on investigation, it was revealed that A6 to A8 aided other accused in the commission of the offences. The petitioner was arrested on 28.09.2022; since then, he has been in judicial custody.

The learned counsel for the petitioner submits that the second accused is innocent and with no criminal antecedents and that there is no material to connect him with the alleged offence. It is also pointed out that A1, from whom the seizure was effected, was granted default bail pursuant to the order of this Court in Crl. M.C.No.3491/2023 dated 22.8.2023.

The learned Public Prosecutor opposes the application and submits that from A2 alone, 39.7 grams of MDMA was seized.

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

Though the learned counsel for the petitioner argued that the contraband seized is not MDMA but Methamphetamine and, therefore, will fall under the intermediate quantity, the FSL report is not on record. It is seen that the first accused was granted statutory bail as no final report was filed within the stipulated time. The learned counsel for the petitioner submits that an oral request was made by the second accused also, just as the first accused, and he was also entitled to statutory bail being similarly placed on that count.

As this Court found in Crl. M.C.No.3491/2023 that the grant of extension by the Special Court was bad, the right of the second accused is in no way different from the first accused as he had also made an oral request for default bail and going by the findings rendered in Crl. M.C No.3491/2023, the petitioner, is also entitled to similar treatment as the facts are similar.

Taking note of the above and the fact that the case diary shows the repeated phone calls between A4 & A6 and also between A1 & A6, A6 & A7, and A6 & A8 during the relevant period, the accusation against A2 was the seizure of 39.7 grams of MDMA, which is of course commercial quantity in the absence of the chemical analysis report on record. Certainly, the contention of the second accused is that the contraband Methamphetamine is of intermediate quantity. It is not disputed that there are no other criminal antecedents against the petitioner.

Going by the principles laid down by this Court in Fasil v. State of Kerala  (BA No.3849/2022: Neutral citation  No.2023:KER:23200), which held that in cases where the accused did not have any criminal antecedents and that he was in custody for a long time and the impossibility of trial within a reasonable time and also the contraband involved if it is just above the intermediate quantity and the same is not a huge or sizable quantity, can all be considered as parameters to dilute the rigour under Section 37 of the NDPS Act.

In the instant case, the petitioner has been in custody since 28.9.2022, and the prospect of any imminent trial is remote. I have also taken into account the facts narrated above regarding the entitlement of the second accused to statutory bail and also the contention on behalf of the petitioner that the contraband seized is Methamphetamine, in which case the quantity involved is only intermediate quantity. In such cases, I am of the view that the petitioner is entitled to bail, going by the decisions referred to above. Accordingly, the bail application is allowed, and the petitioner is enlarged on bail, subject to the following conditions:-

i. The accused/petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh Only), each with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned.

ii. The accused/petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. He shall report to the Investigating Officer every Monday between 9 a.m. and 12 noon for a period of two months and also appear before the Investigating Officer as and when directed.

iii.The accused/petitioner shall not leave India without prior permission of the jurisdictional court.

iv. The petitioner shall surrender his passport, if any, within seven days from the date of their release before the Court concerned. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within three days thereafter.

v. Accused/petitioner shall not involve or indulge in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted.