Ummer Haris vs State Of Kerala

Mohammed Nias C. P. , J.

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

The petitioner is the first accused in Crime No.37/2023 of Excise Range Office, Palakkad, for having allegedly committed offences punishable under Section 22(C) and r/w section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case is that on 06.03.2023 at about 10.20 a.m., while the Excise Inspector and his party attached to Walayar Check Post were conducting vehicle inspection duties in front of Walayar Check Post situated along the Coimbatore-Palakkad NH 544, they found accused 1 and 2 in possession of 130 grams of MDMA kept concealed in a bag in their possession at seat No.14 and 15 of the bus bearing registration No.AR-02-B-4494, which was proceeding to Cochin from Hyderabad, thereby committing the above offence.

The learned counsel appearing for the petitioner would say that the petitioner is totally innocent and falsely implicated with ulterior motives. At any rate, he points out that the petitioner has been in custody since 06/03/2023, and continued custody of the petitioner is unnecessary. Learned counsel for the petitioner argues that the statement in spot mahazar was that the bag belonged to the other accused. At the time of the filing of the final report, the case is changed and it is made as if both of them travelled together and it was a bag which they used in common. The decision in Vikram v. State of Himachal Pradesh (2022 ICO 2192) is also cited for arguing that when the bag belonged to the co-accused, no accusation could have been made against the petitioner.

Learned Public Prosecutor, however, opposing the bail application submits that in the spot mahazar itself at the beginning, it is stated that the bag belongs to the first accused. At any rate, it is submitted that after the conclusion of the investigation, the final report clearly shows the involvement of the petitioner. There is also other evidence to show the link between the accused as they had gone to Bangalore to procure the contraband. They travelled and stayed together, and there is ample evidence to show the involvement of both the accused.

Having considered the rival submissions, it is clear that though the spot mahazar records at one place that the bag belongs to the second accused, at the beginning of the spot mahazar, the statements of both the accused that they both used the common bag is clear. The decision relied on by the learned counsel for the petitioner has no application, as in that case, the contraband came to be recovered from the bag of the co-accused, and nothing was recovered from the possession of the accused or from his luggage. The facts are totally different from this case as the final report and in the spot mahazar itself at one place states that the bag was used in common by both the accused. At any rate, after the completion of the investigation, the final report also speaks of the involvement of both of them. Since commercial quantity is involved and there is evidence to show that they had travelled together to Bangalore to procure the contraband, taking note of the fact that filed bail application filed by the second accused is dismissed as per order in BA No.6645 of 2023 dated 16.10.2023, I do not find any reason to grant bail to this accused.

Accordingly, the bail application stands dismissed.