Rameez Manoj vs State Of Kerala
2023 Latest Caselaw 9285 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
                     BAIL APPL. NO. 5828 OF 2023
   AGAINST THE ORDER/JUDGMENT Bail Appl. 8082/2022 OF HIGH COURT OF
                                KERALA
     CRIME NO.864/2022 OF PANDALAM POLICE STATION, PATHANAMTHITTA
PETITIONER/ACCUSED NO.7:

           RAMEEZ MANOJ,
           AGED 23 YEARS,
           S/O MANOJ V. SALAM, THENAMAKKAL HOUSE, NEAR FIRE STATION,
           VATTAPPARA, KANJIRAPPALLY P O, KANJIRAPPALLY VILLAGE,
           KOTTAYAM DISTRICT, PIN - 686510.
           BY ADVS.
           S.RAJEEV
           V.VINAY
           M.S.ANEER
           SARATH K.P.
           PRERITH PHILIP JOSEPH
           ANILKUMAR C.R.


RESPONDENT/STATE:

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



           PUBLIC PROSECUTOR SRI M P PRASANTH


THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.08.2023,
THE COURT ON 25.08.2023 DELIVERED THE FOLLOWING:
                           A. BADHARUDEEN, J.
                 ================================
                            B.A.No.5828 of 2023
               ================================
                   Dated this the 25th day of August, 2023


                                    ORDER

This is the second application for regular bail filed under Section 439 of

the Code of Criminal Procedure by the 7th accused in crime No.864/2022 of

Pandalam police station, where accused alleged to have committed offences

punishable under Sections 22(c), 60(3), 8(c) and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'

for convenience).

2. Heard the learned counsel for the petitioner as well as the learned

Public Prosecutor.

3. I have perused the case diary along with relevant materials placed

by the learned Public Prosecutor as well as the learned counsel for the

petitioner.

4. Precisely, the prosecution case is that accused herein hatched

conspiracy and thereafter accused Nos. 1 to 5 have kept 151.490 gm of MDMA

at River Walk Hotel, near Manikandan Althara Junction, Pandalam

Municipality and the Pandalam police seized the contraband and arrested

accused Nos.1 to 5. The further allegation is that for the purchase of contraband, accused Nos.1, 4 and 5 went to Bangalore and met accused No.6

and credited money in the account maintained by 7 th and 8th accused, who are

intermediaries for buying MDMA. Accordingly, MDMA was purchased and

possessed.

5. The present bail application is at the instance of the 7 th accused.

According to the learned counsel for the petitioner, there is anomaly in the

prosecution case starting from the registration of FIR and inclusion of the

present petitioner as an accused. The learned counsel also pointed out delay in

registering the FIR after detection of the crime at 15.55 hours on 30.07.2022

and registration of crime at 03.25 hours on 31.07.2022. It is submitted further

that since nothing recovered from the conscious possession of the 7 th accused

and the prosecution relies on confession statement and bank statements as the

basis to implicate the 7th accused. In such a case, the rigour under Section 37

of the NDPS Act would not apply. Therefore, the petitioner, who has been in

custody for the last one year, deserves bail. He also would submit that there

may be bank transaction between the 7th accused and other accused prior to the

detection, but the same was for the purpose of sale of vehicle and therefore, the

petitioner has no involvement.

6. It is argued by the learned counsel for the petitioner further that

even though his earlier bail application was dismissed on the basis of the rider

under Section 37 of the NDPS Act, as per the ratio in [2023 (3) KHC 212], Fasil v. State of Kerala, this Court diluted the rigour under Section 37 of the

NDPS Act in case of a person, who is in custody for one year and having no

criminal antecedents and further the trial in this case could not be materialised

within a period of six months. Therefore, applying the said ratio, the petitioner

is liable to be released on bail.

7. Whereas the learned Public Prosecutor zealously opposed bail and

pointed out the involvement of the 7th accused in this crime in detail. In the

report, it has been stated that 7th accused is the person who had been studying

for PG course in Bangalore and a close friend of accused Nos.6 and 8 arranged

MDMA which was recovered from accused Nos. 1 to 5. But it is submitted

that the petitioner has no criminal antecedents and he was arrested on

19.08.2023.

8. On evaluation of the relevant records, it is discernible that during

investigation, it was found that the 2 nd accused while studying for PG course in

Bangalore maintained friendly relationship with accused Nos.6, 8 and 9 and

worked as a mediator in the transport of MDMA. On scrutiny of the bank

statements maintained by the 7th accused at Federal Bank, Kanjirappally, it

was found by the Investigating Officer that in between 01.01.2022 to

10.08.2022, Rs.37,21,674/- deposited in the account of the 7th accused and out

of which, Rs.37,13,992/- was withdrawn. The further allegation is that as on

28.07.2022 when the 2nd accused went to Bangalore to purchase MDMA, Rs.35,000/- was deposited by the 2nd accused in the name of the 7th accused.

Similarly, the first accused also deposited Rs.35,000/- on 29.07.2022; 8th

accused deposited Rs.55,000/- (Rs.24,000 + 31,000) as on 29.07.2022.

9. In Fazil's case this Court held as under:

"Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act."

10. To be on the crux of the matter, since the petitioner has been in

custody from 19.08.2022 and he is a person having no criminal antecedents

and the trial even not started, applying the ratio in Fasil's case (supra) the

petitioner can be enlarged on bail.

11. Therefore, this petition stands allowed. The petitioner is enlarged

on bail on conditions:

i. The petitioner shall be released on bail on his executing bond for

Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for

the like amount to the satisfaction of the Special court concerned.

ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial.

iii. The petitioner shall not leave India without the permission of the

Special court.

iv. The petitioner shall not, directly or indirectly, make any inducement,

threat or promise to any person acquainted with the facts of this case, so as to

dissuade him from disclosing such facts to the court or to any police officer.

v. The petitioner shall surrender his passport before the Special Court on

the date of execution of the bail bond or within ten days therefrom, with

special permission of the Special Court. If the petitioner has no passport, he

shall file an affidavit to that effect, instead of surrendering passport, within the

stipulated time. vi. The petitioner shall not involve 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 shall be a reason to cancel the bail hereby granted.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/ APPENDIX OF BAIL APPL. 5828/2023

PETITIONER'S ANNEXURES

Annexure I A TRUE COPY OF THE FIR IN CRIME NO 864/2022 OF PANDALAM POLICE STATION, PATHANAMTHITTA DATED 31.07.2022 IS PRODUCED HEREWITH AND MAY BE MARKED AS ANNEXURE-I.

Annexure II ORDER DATED 27-02-2023 IN BAIL APPL.8082/2022 ON HIGH COURT Annexure III A COPY OF THE ORDER IN BA NO 7756/2022 DATED 23.12.2022 IS PRODUCED HEREWITH AND MAY BE MARKED AS ANNEXURE III.