Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943 BAIL APPL. NO. 10084 OF 2021 CRIME NO. 78/2021 OF VENGARA POLICE STATION, MALAPPURAM PETITIONER/1ST ACCUSED: IRSHAD AGED 31 YEARS S/O. MAMMAD, KALLAN HOUSE, AREEKULAM, VENGARA, THIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADVS.ANOOP ANTONY REJEESH M.A. MARY SALINI RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.
BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON 28.01.2022 DELIVERED THE FOLLOWING: B.A.No. 10084 of 2021 2
O R D E R
This is an application for bail filed under Section 439 of the Code of Criminal Procedure by the first accused in Crime No. 16.03.2021 after seizing 33 grams of MDMA from three persons, who were moving in a Polo car bearing Registration No. KL-31-H-
4747. They were intercepted by the Sub Inspector of Vengara police
at 18.10 hours on 16.03.2021 from near Kooriyad market on the basis of secret information received. This is the 4th application made in succession by the petitioner/first accused seeking his release on bail. According to the petitioner, the allegations against him are false, himself and others were arrested from the side of the road alleging their involvement in trafficking of prohibited substances, they were then taken inside the car, photographs were taken and a case has been fabricated. The documents indicate that the petitioner was arrested before information was allegedly received by the police. There are also very many improbabilities in the charge
B.A.No. 10084 of 2021 3
sheet, statement of Augustine SCPO 4830 recorded under Section 161 of the Code of Criminal Procedure indicates that he had gone for taking narcotic drug kit from the Excise Assistant Commissioner Office, which is about 15 kms away from the place of arrest, it is improbable that he could travel about 30 kms within no time, for the to and fro journey for which atleast 32 minutes by bike and 37 minutes by car would have been necessary. In the earlier order, this Court had taken note of the presence of a small weighing machine and a protractor inside the car and observed that it was carried in connection with trade in narcotic drugs. But the petitioner is a Mechanical Engineer by profession and is working in a quarry crusher unit in Mysore and those paraphernalia were necessary for his professional use. Annexure A4 order passed by this Court granting bail in B.A. No. 7918/2021 to the 3rd accused in S.C. No.
also highlighted in seeking bail to the petitioner.
2. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. B.A.No. 10084 of 2021 4
3. The learned counsel, apart from the above stated
contentions also urged that, during the period when the petitioner is in custody his wife gave birth to a child on 29.11.2021 and the wife and child need his care and presence, after the birth of the child, the physical condition of his wife has weakened, that they are staying alone without the support from both the families.
4. As stated earlier this is the fourth application moved by
the petitioner for bail. It is a case in which the petitioner and two others were found in possession of 33 grams of MDMA, which is commercial quantity and they face allegations under Sections 22(c) and 29(1) of the NDPS Act. They were arrested by the Sub Inspector, Vengara police station on 16.03.2021 at 18.30 hours.
5. In fact, most of the contentions were raised by the
petitioner in the earlier applications. In the light of the disputed contentions, before passing Annexure A2 order this Court had called the case diary from Vengara police station and gone through the same and after meticulous consideration of the arguments, dismissed the application on 10.11.2021. Again, another application was
B.A.No. 10084 of 2021 5 dismissed by Annexure A3 order dated 04.12.2021. This application was filed on 28.12.2021 raising almost the self-same contentions.
6. All the contentions were repeated when B.A. No.
the arguments were repelled. Regarding the first contention, that a false case has been foisted stands rejected by this Court after perusing the case diary. It was observed that the argument that the police had slapped such a serious criminal case on three innocent persons does not stand to reason. Such a complaint was not raised before the Magistrate or Special Judge when they were produced for the first time seeking judicial custody.
7. The second argument that they were shown arrested even
before the receipt of information also found unexpectable, after perusing the case diary. Similarly, the incongruities regarding the improbability of the SCPO proceeding to the Excise office, travelling 30 kms to and fro etc., were described not acceptable as the court cannot go into such nitty-gritty aspects of the matter. It was also noticed that the three passengers of the car had carried 9
B.A.No. 10084 of 2021 6 grams of MDMA each. Similarly, in the back seat there was a bag in which Aadhaar card of the petitioner was found, from where another six grams of MDMA was seized.
8. It may be true that the petitioner is a Mechanical
Engineer, but the argument that he had carried a weighing machine and protractor in connection with his employment in a quarry crusher unit cannot be appreciated now. Such an argument was not raised in the earlier applications. Similarly, the fact that his wife has given birth to a child after his arrest was also raised earlier and having regard to the gravity of the allegations against the petitioner, it is not a reason to grant him bail in the light of the embargo under Section 37 of the NDPS Act. The petitioner cannot take advantage of Annexure A4 order which was rendered in the peculiar facts of the case. All the contentions raised by the petitioner were considered by this Court and his applications were dismissed. I do not find any reason to take a different view. Therefore, the application lacks merit and is liable to be dismissed.
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9. It is true that the petitioner is languishing in prison from
16.03.2021 onwards. Therefore, the learned Special Judge before whom the charge sheet has already been laid is directed to expedite the trial and dispose of the case, at the earliest. With this direction, the bail application is dismissed. SD/- K.HARIPAL JUDGE DCS/28.01.2022