Riyas vs State Of Kerala

Kerala High Court

Riyas vs State Of Kerala on 23 May, 2024

Author: C.S.Dias

Bench: C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                     THE HONOURABLE MR.JUSTICE C.S.DIAS
      THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                        BAIL APPL. NO. 1845 OF 2024
      CRIME NO.754/2023 OF PARIPPALLY POLICE STATION, KOLLAM
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.1398 OF 2023 OF DISTRICT
COURT & SESSIONS COURT,KOLLAM
PETITIONER/2ND ACCSUED:

            RIYAS
            AGED 35 YEARS
            S/O. SAIFUDEEN, SIYAD MANZIL, PERUMKULAM, MANAMBOOR
            VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM DISTRICT-,
            PIN - 695141

            BY ADV P.ANOOP (MULAVANA)



RESPONDENT:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031

            SR.PUBLIC PROSECUTOR SMT. NEEMA T.V.


     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A. NO.1845 OF 2024           2




              Dated this the 23rd day of May, 2024

                            ORDER

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.754/2023 of the Parippally Police Station, Kollam, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 22(c), 20(b)(ii) (B), 29 and 31 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act').

2. The crux of the prosecution case, is that: on 5.6.2023, at around 17.50 hours, while the first accused was travelling in a car through the National Highway from Thiruvananthapuram to Kollam, he was intercepted by the Detecting Officer. On conducting a search in the B.A. NO.1845 OF 2024 3 vehicle, 4.200 kg of ganja and 14 grams of MDMA were recovered from him. Thus, the accused has committed the above offences.

3. Heard; Sri. P.Anoop, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner has reliably learnt that as per the chemical analysis report, the contraband involved in the case is 'Methamphetamine' and not 'MDMA' as alleged by the prosecution. Therefore, the contraband is of an intermediate quantity. Moreover, the petitioner has been in judicial custody since 14.8.2023, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner is entitled to be released on bail. Hence, the application may be allowed. B.A. NO.1845 OF 2024 4

5. The learned Public Prosecutor opposed the application. She submitted that the petitioner is involved in a subsequent crime of a similar nature. If the petitioner is enlarged on bail, there is every likelihood of him committing similar offences. The investigation in the case is complete. However, she conceded to the fact that as per the chemical analysis report submitted by the State Forensic Science Laboratory, Thiruvananthapuram dated 30.12.2023, the contraband involved in the case is 'Methamphetamine' and not 'MDMA' as stated in the FIR.

6. The prosecution was lodged against the petitioner on the allegation that he was found in conscious possession of 14 grams of MDMA and 4.200 Kg of ganja. He was arrested on the spot with the contraband. Since the contraband i.e., 14 grams of MDMA falls within the specification of commercial quantity, the rigour under Section 37 of the Act was applied and the petitioner was denied bail by the Court of B.A. NO.1845 OF 2024 5 Session as per Annexure A1 order. Now, as per the chemical analysis report, it has turned out that the contraband involved in the case is 'Methamphetamine' and not 'MDMA'. Therefore, the contraband is of an intermediate quantity. Indisputably, the petitioner was not involved in any case prior to the registration of the present crime. Even otherwise, the rigour under Section 37 of the Act will not apply to the present the case.

7. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the contraband involved in the case is of intermediate quantity as per the chemical analysis report dated 30.12.2023, the investigation in the case is complete and recovery has been effected, I am of the definite view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the bail application.

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 three 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 B.A. NO.1845 OF 2024 7 while they are 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 B.A. NO.1845 OF 2024 8 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].

SD/-

C.S.DIAS, JUDGE rmm23/5/2024