Kerala High Court

Leena Jacob Thundiyil vs State Of Kerala on 5 June, 2025

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

B.A. No.6010/25                        1


                                                                      2025:KER:39432

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                  THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

        THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947

                           BAIL APPL. NO. 6010 OF 2025

           CRIME NO.1232/2024 OF Anchal Police Station, Kollam

          AGAINST THE ORDER DATED 10.03.2025 IN Bail Appl. NO.1880 OF

                           2025 OF HIGH COURT OF KERALA

PETITIONER/ACCUSED:

                  LEENA JACOB THUNDIYIL
                  AGED 48 YEARS, W/O. SAJU C GEORGE,
                  THUNDIYIL HOUSE,
                  RONAK HOUSE, KADAVARAM,
                  ALAYAMON, KARUKONE P.O,
                  KOLLAM DISTRICT, PIN - 691306


                  BY ADVS.
                  SHRI.ANISH ANTONY ANATHAZHATH
                  SHRI. VIJEESH K.S.




RESPONDENT/STATE:

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


                  SRI. NOUSHAD K.A., PUBLIC PROSECUTOR


       THIS       BAIL   APPLICATION       HAVING   COME   UP   FOR   ADMISSION   ON
05.06.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 B.A. No.6010/25                     2


                                                               2025:KER:39432




                       BECHU KURIAN THOMAS, J.
                           --------------------------------
                            B.A. No.6010 of 2025
                          ---------------------------------
                      Dated this the 5th day of June, 2025

                                    ORDER

This bail application is filed under section 483 of the Bharatiya Nagarik

Suraksha Sanhita, 2023 (for short 'NDPS Act'))

2. Petitioner is the 6th accused in Crime No.1232 of 2024 of Anchal

Police Station, Kollam registered for the offences punishable under sections

22(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (for short 'NDPS Act').

3. According to the prosecution, on 25.11.2024, the 1 st accused was

found to be in possession of 3.550 grams of MDMA and thereafter on further

inspection, 76.660 grams of MDMA was seized from the residence of the 2 nd

accused kept for sale and the 6 th accused is alleged to have financed the

procurement of the contraband and thereby the accused committed the

offences alleged.

4. Petitioner was arrested on 05.02.2025 and she has been in custody

since then.

5. Sri.Anish Antony Anathazhath, the learned counsel for the petitioner

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contended that the entire prosecution allegations are false and the incident as

alleged did not occur. It was also submitted that the petitioner has no

connection with the offence alleged and she has been roped in as an

accused without any specific material to connect her with the crime. The

learned counsel also submitted that the 3 rd accused is the petitioner's driver

while the 4th accused is her son, who is studying in Bangalore. According to

the learned counsel for the petitioner, the amounts paid by her towards salary

and other allowances to her driver and the amounts paid to her son are

treated as connecting links between her and the other accused to allege

conspiracy. Learned counsel also pointed out that petitioner is suffering from

serious illnesses and also that the 5th accused has already been released on

bail by the Sessions Court. According to the learned counsel, since the

petitioner stands on the same footing and was even arrested on 05.02.2025,

the day on which the 5th accused was arrested, the continued detention of the

petitioner is not warranted especially she being a woman.

6. The learned Public Prosecutor opposed the submissions and stated

that petitioner had specifically financed the purchase of contraband by the 4 th

accused, who is her son, by transferring large amounts of money to him as

well as to the 3rd accused, who is her driver, and therefore the rigour under

section 27A of the NDPS Act will apply. It was also submitted that the

petitioner having been part of the conspiracy to indulge in drug peddling, she

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ought not to be released on bail

7. On a perusal of the records produced, it is noticed that the petitioner

is alleged to have transferred large amounts of money every month to her

son, the 4th accused. The conduct of a parent in transferring money to her

son for purposes of his studies, education or residence cannot be interpreted

as conspiracy to procure drugs in the absence of something more. In order to

implicate a person in the offence of conspiracy, it is necessary that an

agreement between them is brought out by the prosecution. A mere

knowledge or even a discussion of the plan is not per se enough. In this

context, it has to be observed that though a conspiracy is hatched in secrecy

and it is difficult to adduce direct evidence, the investigation can rely upon

various materials to enable the court to infer that those acts were done with

reference to the common intention as well as by other circumstantial

evidence. Though the agreement for the purpose of conspiracy need not be

proved, there must be some physical manifestation of the agreement.

Reference in this context to the decisions of the Supreme Court in

R.Venkatkrishnan v. Central Bureau of Investigation (2009) 11 SCC 737

and in State of Orissa v. Mahimananda Mishra (2018) 10 SCC 516 are

relevant.

8. Considering the nature of materials produced by the respondents, it

is prima facie noticed that except for a few transactions of money by the

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petitioner to driver and her son, accused 3 and 4 respectively, there are prima

facie no materials which could be regarded as a physical manifestation of an

agreement to conspire between the other accused to procure a contraband.

9. Apart from the above, petitioner has been in custody from

05.02.2025 and the 5th accused, who also stands in almost a similar position

as that of the petitioner, has been released on bail by the Sessions Court as

per order dated 02.06.2025 in Crl.M.C. No.1327 of 2025.

10. In the decision in Narcotics Control Bureau V. Kashif [(2024)

INSC 1045] the Supreme Court recently observed that "There has been

consistent and persistent view of this Court that in the NDPS cases, where

the offence is punishable with minimum sentence of ten years, the accused

shall generally be not released on bail. Negation of bail is the rule and its

grant is an exception. While considering the application for bail, the court has

to bear in mind the provisions of S.37 of the NDPS Act, which are mandatory

in nature. The recording of finding as mandated in S.37 is a sine qua non for

granting bail to the accused involved in the offences under the said Act. Apart

from granting opportunity of hearing to the Public Prosecutor, the other two

conditions i.e., (i) the satisfaction of the court that there are reasonable

grounds for believing that the accused is not guilty of the alleged offence and

that (ii) he is not likely to commit any offence while on bail, are the cumulative

and not alternative conditions."

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11. As observed by the Supreme Court in State of Kerala and Others

v. Rajesh and Others [(2020) 12 SCC 122], the scheme of section 37

requires that the power to grant bail under the NDPS Act is subject to the

limitation placed in the said provision over and apart from the restrictions

under the procedural law and the twin conditions stipulated therein are

required to be satisfied. Further, in the decision in Narcotics Control Bureau

V. Mohit Aggarwal [(2022) 18 SCC 374], it has been observed that the focus

must be on the availability of reasonable grounds to believe that the accused

is not guilty of the offence alleged against and also that he is unlikely to

commit an offence under the Act. The Supreme Court went on to observe

that the length of the period of custody or that the charge sheet had been filed

or even that the trial has commenced are by themselves are not

considerations that can be treated as persuasive to grant bail under section

37 of the NDPS Act.

12. Considering the entire circumstances of the case, I am of the view

that there are reasonable grounds for this Court to believe that the petitioner

is not guilty of the offences alleged and considering that there are no criminal

antecedents against her, there is no possibility of her committing any offence

while on bail. The rigour under section 37 of NDPS Act has thus been diluted

in this case against the petitioner.

Accordingly, this bail application is allowed and the petitioner shall be

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released on bail on the following conditions:-

(a) Petitioner shall be released on bail on her executing a bond for

Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for

the like sum to the satisfaction of the court having jurisdiction.