Allen Tony Joseph vs State Of Kerala
2023 Latest Caselaw 721 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                    THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
       THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                        BAIL APPL. NO. 10171 OF 2022
       CRIME NO.731/2022 OF PALARIVATTOM POLICESTATION, ERNAKULAM
PETITIONER/ACCUSED:

           ALLEN TONY JOSEPH,AGED 33 YEARS
           S/O V.J. THOMAS, VADAKKAL HOUSE,
           PRADEEKSHA NAGAR, THOPPUMPADY P.O,
           THOPPUMPADY VILLAGE, ERNAKULAM., PIN - 682005
           BY ADVS.
           ASHIK K.MOHAMED ALI
           NIZAMUDHEEN P.


RESPONDENT/STATE:

           STATE OF KERALA
           REPRESENTED BY THE INSPECTOR OF POLICE,
           PALARIVATTOM POLICE STATION, ERNAKULAM
           (REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM), PIN - 682031


OTHER PRESENT:

           PP: M.C.ASHI



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.01.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BA No.10171 of 2022                                   2



                                 VIJU ABRAHAM, J.
                 .................................................................
                               B.A. No.10171 of 2022
                 .................................................................
                Dated this the 12th day of January, 2023

                                          ORDER

This is an application for regular bail.

2. Petitioner is the 5th accused in Crime No.731 of 2022 of the

Palarivattom Police Station registered alleging commission of offences

punishable under Sections 8(c) and 22(c), 27A and 29 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (in short, "NDPS Act").

3. The case of the prosecution is that on 19.07.2022 at 11:55 p.m.,

the Sub Inspector of Police found 102.04 grams of MDMA from the zip

covers on a scooter bearing registration No. KL-41-J4636 for sale, which

was parked on the western side of the Stadium Link Road and thereby the

accused committed the offences.

4. Petitioner submits that he was arrested on 05.08.2022 and is in

custody since then. The petitioner and three others were arrayed as

accused on the basis of the statement of the 1 st accused who was arrested

on the spot, and the petitioner is arrayed as the 5 th accused. Nothing was

seized from the possession of the petitioner. The petitioner further submits

that he is suffering from serious kind of liver disease. The petitioner also

submitted that he has been arrayed as an accused only on the basis of a

statement of the co-accused which has no evidentiary value as held by the

Apex Court in Tofan Singh v. State of Tamilnadu, (2021) 4 SCC 1.

Petitioner also relies on Vijaysinh Chandubha Jadeja Vs. State of

Gujarat, 2011 Cri.L.J 680 and Fakrul Islam alias Fakru alias Phakru

and Others Vs. Union of India and others, 2019 Cri.L.J 1631.

5. Learned Public Prosecutor seriously opposed the application for

bail mainly contending that the investigation so far revealed active

involvement of the petitioner in the alleged crime. Initially, 102.04 gms of

MDMA was seized from the possession of the 1 st accused. The

investigation further revealed that the said contraband was supplied to the

1st accused by accused Nos. 2 and 3 and they were arrested. The

investigation also revealed that the 3rd accused has sent the petitioner and

the 4th accused to Delhi for the purchase of the alleged contraband, and

they brought the alleged contraband for the 3rd accused. It is also further

submitted that when CDRs of the phones of petitioner and accused Nos. 3

and 4 were verified, it is found that they have constant contact over the

phone and on verification of the bank account it is revealed that petitioner

and accused Nos. 2, 3 and 4 have monetary transactions between them.

The investigation so far revealed that almost 5 kgs of MDMA was brought

to the State by these accused and since the contraband was obtained from

Banglore and Delhi, the investigation is going on in this regard.

6. Investigation in the above crime is going on. Other than the

statement of the co-accused, prima facie I feel that materials have been

collected by the prosecution so as to substantiate the involvement of the

petitioner in the alleged crime. Therefore, the contention based on Tofan

Singh's case supra and other judgments are not applicable in the facts of

this case. Since the contraband involved is of commercial quantity, the rigor

of Section 37 of the NDPS Act will definitely come into play, and for the

release of the petitioner on bail, the twin conditions provided in the said

Section are to be satisfied. I am of the prima facie view that the petitioner

could not substantiate that the rigor under Section 37 of the NDPS Act will

not apply in the facts and circumstances of this case.

I have considered the bail application of the petitioner in

Annexure A4 order and I find no reason to take a different view, but taking

note of the severe health issues, the jail authorities shall continue to

comply without any fail, the directions in paragraph 7 of the bail order in BA

No. 8489/2022, to provide necessary medical treatment to the petitioner.

With the said limited direction, the bail application is disposed of.

Sd/-

VIJU ABRAHAM JUDGE

cks