Ubaid.N vs State Of Kerala
2024 Latest Caselaw 29708 Ker

Kerala High Court

Ubaid.N vs State Of Kerala on 22 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                               2024:KER:78303


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR.JUSTICE C.S.DIAS

  TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946

                 BAIL APPL. NO. 6236 OF 2024

   CRIME NO.375/2024 OF MEENANGADI POLICE STATION, WAYANAD




PETITIONER/SECOND ACCUSED:

         UBAID.N,
         AGED 32 YEARS
         S/O AMMAD, RESIDING AT NOCHATTU HOUSE,
         PALLIYATH, VELOM, KUTTIADY P.O.
         KOZHIKKODE DISTRICT, PIN - 691305


         BY ADVS.
         NIRMAL V NAIR
         M.ANEESH
         MOHAMMED MUSHTHAQ S.




RESPONDENT:

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

         BY SMT. PUSHPALATHA. M.K
         SENIOR PUBLIC PROSECUTOR


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                    2024:KER:78303
B.A.No.6236 of 2024           2



                            ORDER

Dated this the 22nd day of October,2024

The application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023, by the

second accused in Crime No. 375/2024 of the

Meenangadi Police Station, Wayanad, which is

registered against four accused persons for allegedly

committing the offences punishable under Sections 22(c)

and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985. The petitioner was remanded to

judicial custody on 03.06.2024.

2. The prosecution allegation, in brief, is that: on

01.06.2024, at around 10:30 hours, the first accused was

found in conscious possession and transporting 113.57

grams of MDMA in a bus bearing registration No. TN-73-

AE-2106. The first accused was arrested on the spot with

the contraband article. During the investigation and

interrogation of the first accused, he confessed that he 2024:KER:78303

had purchased the contraband from accused 3 and 4 as

requested by the second accused. Thus, the accused

have committed the above offences.

3. Heard; Sri. Nirmal V. Nair, the learned counsel

appearing for the petitioner and Smt. Pushpalatha. M.K.,

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. There is no material to

substantiate the petitioner's culpability in the crime. The

petitioner has been implicated as an accused solely on

the basis of the confession statement of the first accused,

which is inadmissible in view of the law laid down by the

Honourable Supreme Court in Tofan Singh v. State of

Tamilnadu [2020 (2) KLD 781]. There are no other

materials to link the petitioner in the above crime. In any

given case, the petitioner has been in judicial custody for

the last 143 days, the investigation in the case is 2024:KER:78303

complete, the recovery has been effected, and the

petitioner does not have any criminal antecedents.

Therefore, the petitioner's further detention is

unnecessary. Hence, the application may be allowed.

5. The learned Public Prosecutor opposed the

application. She submitted that the investigation in the

case is in progress. She also submitted that if the

petitioner is let off on bail, there is every likelihood of

him committing a similar offence. Hence, the application

may be dismissed. Nonetheless, she did not dispute the

fact that the petitioner has been implicated in the crime

based on the confession statement of the first accused.

There is no other material to prove the petitioner's

complicity in the crime. She also did not dispute the fact

that the petitioner does not have any criminal

antecedents.

6. The prosecution case is that, the first accused

was found in conscious possession and transporting

113.57 grams of MDMA. The petitioner has been 2024:KER:78303

implicated in the case on the basis of the alleged

confession of the first accused.

7. Indisputably, the contraband involved in the

case is of a commercial quantity. Therefore, the rigour

under Section 37 of the Act applies to the facts of the

case.

8. In the above context, it is apposite to extract

Section 37 of the Act, which reads as follows:

"37. Offences to be cognizable and nonbailable.--

(1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail".

2024:KER:78303

9. A plain reading of the above provision

demonstrates that a person accused of an offence under

Sections 19, 24 and 27-A of the Act and also involving

commercial quantity shall not be released on bail unless

the court is satisfied that there are reasonable grounds

to believe that the accused is not guilty and is not likely

to commit any offence while on bail. Therefore, the

power to grant bail to a person accused of committing an

offence under the Act is subject to provisions contained

under Sec.439 of the Code and parameters referred to

above and on the accused satisfying the twin conditions

under Sec.37 of the Act.

10. While interpreting 'reasonable grounds'

prescribed under Section 37 of the Act, the Honourable

Supreme Court in Union of India v. Shiv Shanker

Kesari [(2007) 7 SCC 798] observed thus:

"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the 2024:KER:78303

accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged".

11. Likewise in Dheeraj Kumar Shukla v. The

State of Uttar Pradesh [2023 SCC OnLine SC 918], the

Hon'ble Supreme Court has held that an accused does

not have criminal antecedents, he qualifies the second

limb of Section 37 of the Act.

12. On a careful scrutiny of the case diary and the

materials placed on record, I do not find any material to

connect the petitioner with the above crime, other than

for the alleged confession statement of the first accused,

which is inadmissible in view of the law laid down by the

Honourable Supreme Court in Tofan Singh's case

(Supra). Nonetheless, these are all matters to be

investigated and decided after trial. But, in the absence

of any material to link the petitioner in the above crime, I 2024:KER:78303

find there are reasonable grounds to hold that the

petitioner has not committed the above offences.

Similarly, since the petitioner does not have any criminal

antecedents, he also qualifies the second limb of the Act,

that is, he is not likely to commit an offence if he is

released on bail.

13. After bestowing my anxious consideration to

the facts, the rival submissions made across the Bar, the

materials placed on record, and for the reason

mentioned above, and that the petitioner has been in

judicial custody for the last 143 days, I hold that the

petitioner has qualified the twin condition under Section

37 of the Act.

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:

2024:KER:78303

(i) The petitioner shall appear before the Investigating Officer on every second and fourth Saturday between 9.00 am and 11.00 am till the filing of the complaint (charge-sheet). 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 while he is 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 2024:KER:78303

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 moved and entertained by the Jurisdictional Court;

(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 petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State(NCT of Delhi) and Anr.[2020 (1) KHC 663].

Sd/-

C.S.DIAS,JUDGE mtk/22.10.24 2024:KER:78303

APPENDIX OF BAIL APPL. 6236/2024

PETITIONER ANNEXURES

Annexure A1 A TRUE COPY OF THE FIR DATED 1-6-2024 IN CRIME NO. 375/2024 OF THE MEENANGADI POLICE STATION

Annexure A2 A TRUE COPY OF THE OF THE REMAND REQUEST DATED 03-06-2024 SUBMITTED BY THE SUB INSPECTOR OF POLICE, MEENANGADI POLICE STATION BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS, SULTHAN BATHERY

Annexure A3 A TRUE OF THE ORDER DATED 25-06-2024 IN CRL.M.C. NO.475/2024 IN CRIME NO.

375/2024 OF MEENANGADI POLICE STATION ON THE FILES OF THE SPECIAL JUDGE NDPS CASES/ADDITIONAL SESSIONS JUDGE, KALPETTA

Annexure A4 A TRUE COPY OF THE JUDGMENT DATED 20-3- 2014 IN C.C. NO. 864/2013 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, VADAKARA

Annexure A5 A TRUE COPY OF THE CASE STATUS OF CRL.M.C. NO. 4538/2017 OBTAINED FROM THE WEBSITE OF HIGH COURT OF KERALA