Afsal Muhammed vs State Of Kerala
2023 Latest Caselaw 10524 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT
             THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
     MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                      BAIL APPL. NO. 7297 OF 2023
         CRIME NO.36 OF 2021 OF EXCISE RANGE OFFICE, ERNAKULAM


PETITIONER/ACCUSED NO.3:

             AFSAL MUHAMMED ,AGED 23 YEARS
             S/O MUHAMMED, PARAYIL HOUSE,
             PANANGARA DESOM, KADAVOOR VILLAGE,
             ERNAKULAM DISTRICT., PIN - 686671

             BY ADVS.
             K.MOHAMMED RAFEEQ
             BIBIN MATHEW
             P.M.MATHEW
             AMARNATH R LAL
             SANALDEV E.P.
             VISHNUMAYA ANANDAN



RESPONDENT/COMPLAINANT & STATE:

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

             EXCISE COMMISSIONER
     2       EXCISE CRIME BRANCH,
             ERNAKULAM DISTRICT, PIN - 682018

OTHER PRESENT:

             SMT.T V NEEMA SR PP



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION          ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                 -2-
BAIL APPL. NO. 7297 OF 2023

                          MOHAMMED NIAS C.P., J.

                         ..................................................

                                 BA No.7297 of 2023

                            ...........................................

                     Dated this the 16th day of October, 2023




                                           ORDER

This application is filed under Section 439 of the Code of Criminal

Procedure, 1973, seeking regular bail.

2. The petitioner is the third accused in Crime No. 36/2021 of Excise

Range Office, Ernakulam, for having allegedly committed offences

punishable under Sections 22(C), 25, 27 and 29 of the Narcotic Drugs and

Psychotropic Substance Act.

3. The prosecution case is that, on 19/08/2021 at about 1.40 A.M, the

Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, acting on

information, conducted a search in Marhaba Apartment, Vazhakala at

Eranakulam and seized 83.896 grams of MDMA illegally kept for sale in an

apartment in the 1st floor of C block and arrested accused No.1 to 5. Later,

upon further investigation role of the other accused persons was revealed

and subsequently, all others were arrested.

BAIL APPL. NO. 7297 OF 2023

4. The learned counsel appearing for the petitioners would say that the

petitioner is totally innocent and falsely implicated with ulterior motives. At

any rate, he points out that the petitioner has been in custody since

19/08/2021, and continued custody of the petitioner is unnecessary.

5. The learned Public Prosecutor opposed the application.

6. However, learned counsel for the petitioner submits that it is connected

to the very same incident and that no other antecedents are reported

against the petitioner. He also relies on the judgments of the Supreme

Court in Dheeraj Kumar Shukla v. State of Uttar Pradesh (SLP

Criminal No.6690/2022) and MD Raja and another v. State of West

Bengal (SLP Criminal No.6690/2022) and of this Court in Banash Basheer

v. State of Kerala (B.A.No.5370/2023), Siddarth v. State of Kerala and

another (B.A.No.4109/2023) and Fasil v. State of Kerala [2023 (3) KHC

212] that followed Dheeraj Kumar Shukla (supra). He would contend that

the petitioner herein is similarly situated as that of the accused in those

cases.

7. Though the Prosecutor opposed the bail application, having gone

through the judgments cited on behalf of the learned counsel petitioner, I

feel there is no reason why similar treatment accorded to the accused in

those cases should not be granted to the petitioner herein. True that

BAIL APPL. NO. 7297 OF 2023

commercial quantity is involved in relation to which crime the petitioner is

accused, however, taking note of the above judgments, the absence of

criminal antecedents and the fact that the petitioner has been in custody

since 19.08.2021, and the chance of the trial getting over anytime soon

being remote, the rigour of Section 37 of the NDPS Act has to be dispensed

with at this stage. It is seen that A4 was similarly placed as this accused

was granted bail by this Court in BA No.8379/2023 dated 4.10.2023. The

allegation against this and the accused referred to above is similar.

Accordingly, on the ground of parity, the petitioner herein is also enlarged

on bail. In the result, the petitioner herein is released on bail subject to

the following conditions:-

(i) The petitioner shall be released on bail on executing a bond for

Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties

each for the like sum to the satisfaction of the jurisdictional Court;

(ii) The petitioner shall report before the Investigating Officer as and

when directed by him.

(iii) The petitioner shall furnish his residential address, including his

mobile phone number, to the investigating officer as well as to the

court.

(iv) The petitioner shall not tamper or attempt to tamper with the

evidence or influence or try to influence the witnesses

(v) The petitioner shall not be involved in any other crime while on

bail.

BAIL APPL. NO. 7297 OF 2023

(vi) The petitioner shall surrender his passport, if any, within seven

days from the date of his release before the Court concerned, and if

the release of the passport is required at a later period, the petitioner

shall be at liberty to move an appropriate application for the same

before the court having jurisdiction. If he has no passport, he shall file

an affidavit to that effect before the court concerned on the date of

execution of the bond or within three days thereafter.

If any of the conditions are violated, the court concerned will be

empowered to take steps for cancellation of bail as per law;

Sd/- MOHAMMED NIAS C.P.

JUDGE

dlk/16.10.2023

BAIL APPL. NO. 7297 OF 2023

APPENDIX OF BAIL APPL. 7297/2023

PETITIONER'S ANNEXURES

TRUE COPY OF THE OCCURRENCE REPORT IN NDPS Annexure- 1 CRIME NO. 36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM.

TRUE COPY OF THE REMAND REPORT DATED Annexure -2 19.08.2021 IN NDPS CRIME NO. 36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM.

TRUE COPY OF THE SPECIAL LEAVE APPEAL (CRL) Annexure- 3 NO. 12116/2022 DATED 17.04.2023 ON THE FILE OF THE HONOURABLE SUPREME COURT OF INDIA.

TRUE COPY OF THE BAIL ORDER DATED 12.06.2023 IN BA NOS. 4208/2023, 3925/2023, 4249/2023, Annexure -4 4378/2023 ON THE FILE OF THIS HONOURABLE COURT.

TRUE COPY OF THE ORDER DATED 26.06.2023 IN Annexure- 5 BA 4933/2023 ON THE FILE OF THIS HONOURABLE COURT.

TRUE COPY OF THE ORDER DATED 07.07.2023 IN Annexure- 6 BA 5315/2023 ON THE FILE OF THIS HONOURABLE COURT.

TRUE COPY OF THE ORDER DATED 19.07.2023 IN CRL. M.P NO. 2686/2023 IN SC NO. 378/2022 ON Annexure -7 THE FILE OF THE HONORABLE DISTRICT AND SESSIONS COURT, ERNAKULAM.