Full Judgment
B.A.Nos.493 and 472 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 8TH DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943 BAIL APPL. NO. 493 OF 2022 (CR.NO.536 OF 2021 OF CHEVAYOOR POLICE STATION, KOZHIKODE DISTRICT) PETITIONER/2ND ACCUSED ANVAR THASNEEM KK AGED 3. YEARS KOLIKUNIMMAL HOUSE ELATTIL PO, KOZHIKKODE KOZHIKODE, PIN - 673572 BY ADVS. C.R.SIVAKUMAR BINI.K MINI.M.NAIR C.B.BHAGYALEKSHMY RESPONDENT/COMPLAINANT AND STATE
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE STATION HOIUSE OFFICER KOZHIKKODE DISTRICT KOZHIKODE, PIN - 673017 BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI. C.K.SURESH- SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.02.2022, ALONG WITH Bail Appl..472/2022, THE COURT ON 08.02.2022 DELIVERED THE FOLLOWING: B.A.Nos.493 and 472 of 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 8TH DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943 BAIL APPL. NO. 472 OF 2022 (CR.NO.536 OF 2021 OF CHEVAYOOR POLICE STATION, KOZHIKODE DISTRICT) PETITIONER/3RD ACCUSED MANSOOR PP AGED 35 YEARS PURAMBALIYIL HOUSE KATTIPAARA, PO KOZHIKKODE KOZHIKODE, PIN - 673615 BY ADV C.R.SIVAKUMAR RESPONDENT/COMPLAINANT AND STATE 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER KOZHIKKODE DISTRICT KOZHIKODE, PIN - 673017 BY ADVS. SRI. C.K SURESH , SR. PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2022, ALONG WITH Bail Appl..493/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.Nos.493 and 472 of 2022 3
ORDER
The petitioners have filed this successive application for bail in Crime No.536 of 2021 of Chevayoor police station registered for the offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short).
2. They are in custody since 22.8.2021.
3. The prosecution allegation is that on 20.8.2021 at about 2.00
a.m while the SI of police, Chevayoor police station and his team were engaged in patrolling duty, intercepted an Innova car bearing Reg.No.KL58 U 246 on suspicion and conducted search of the same. From the car they have seized 44.010 gm of MDMA and 28 Royal 225 Tramadol Hydrochloride tablets, concealed on the back side of the driver seat and thus, they were arrested and the contraband was seized.
4. The learned counsel for the petitioners submit that they are undergoing incarceration for the last more than 5 months, though they are totally innocent of the allegations leveled against them. Hence, this application.
5. The earlier applications filed by the petitioners were
B.A.Nos.493 and 472 of 2022 4 dismissed by this Court by an order 16.12.2021 as it was found that commercial quantity of contraband was involved. But now, the learned Public Prosecutor has produced the copy of the certificate of the chemical analysis issued by the Assistant Chemical Examiner after analysis of the contraband seized. From the report forwarded after analysis of the nature of contraband it is revealed that the contraband seized by the investigating agency is not MDMA but, it is Methamphetamine , a stimulant drug. Tramadol was also not detected in the tablets. As regards the quantity involved it is less than commercial quantity .It is also to be noted that commercial quantity of contraband was not seized from the possession of the accused so as to attract the rigor under the Act in the matter of bail .
6. As the quantity involved is not commercial quantity, the
limitations under Section 37 of the NDPS Act in the matter of bail is not attracted. It is also submitted by the learned Public Prosecutor that the investigating agency is intending to move the trial court to alter the section on the basis of the certificate of the chemical analysis received from the Regional Chemical Examiner's Laboratory, Kozhikode. Therefore, taking into account of the facts and circumstances involved in the case as well the period of detention undergone by B.A.Nos.493 and 472 of 2022 5 them in judicial custody, I am of the view that they can be released on bail subject to the following conditions:
(i) The petitioners shall be released on bail on each of them
executing bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the court having jurisdiction.
(ii) The petitioners shall co-operate with the investigation of the case.
(iii) The petitioners shall not directly or indirectly, make any inducement, threat or promise 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.
(iv) The petitioners shall not commit any offence while on bail.
In case of violation of any of the above conditions, the Jurisdictional Court is at liberty to cancel the bail in accordance with the law. SD SHIRCY V. JUDGE smm B.A.Nos.493 and 472 of 2022 6 APPENDIX OF BAIL APPL. 472/2022 PETITIONER ANNEXURES Annexure1 THE TRUE COPY OF THE RELEVANT PART OF THE FIR NO 536 /2021 DATED 20/08/2021 OF Annexure2 THE TRUE COPY OF THE ORDER IN CRIMINAL MISCELLANEOUS PETITION NO. 436/2021DATED SPECIAL JUDGE (NDPS ACT AND CASES), VADAKARA Annexure3 THE TRUE COPY OF THE ORDER IN BA NO. B.A.Nos.493 and 472 of 2022 7 APPENDIX OF BAIL APPL. 493/2022 PETITIONER ANNEXURES Annexure1 THE TRUE COPY OF THE RELEVANT PART OF THE FIR NO 536 /2021 DATED 20/08/2021 OF Annexure2 THE TRUE COPY OF THE ORDER IN CRIMINAL MISCELLANEOUS PETITION NO. 436/2021DATED SPECIAL JUDGE (NDPS ACT AND CASES), VADAKARA Annexure3 THE TRUE COPY OF THE ORDER IN BA NO. HON’BLE COURT