Abdul Kabeer.P. vs State Of Kerala

Shircy V., J

By this bail application the petitioner seeks regular bail. He is the 2nd accused in Crime No.461 of 2021 registered before Mepaddy police station

under Section 22(C), 22(ii)(A), read with 29 of Narcotic Drugs and Psychotropic Substances Act ('NDPS Act' for short) and Section 118(i) of the

Kerala Police Act read with Section 34.

The petitioner has been in custody since 18.9.2021.

The prosecution case in brief is as follows:

The Sub Inspector of Police, Meppady on 18.9.2021 conducted search in the residential house of this petitioner upon a secret information that narcotic

drugs are being stored in his residence for illegal sale. In the search the detecting officer could seize 22.180 gms of MDMA, 0.970 grams of MDMA

extecy, 2.330 grams of hashish, kept for illegal sale in contravention of the provisions of the NDPS Act. 1170 packets of prohibited tobacco articles

were also seized by sleuths.

The petitioner as well as the first accused are father and son. The residential house where the contraband articles were seized belonged to this

petitioner.

The learned counsel for the petitioner would submit that the petitioner is totally innocent of the allegations levelled against him. In fact he is not

residing permanently in the house. The prosecution case itself is that the contraband was found concealed inside the cup of a ceiling fan of a bed

room. But it was not seized by the officials from the room of this petitioner. It is further contended that he has no connection with the contraband

articles seized but he being the father of the 1st accused has been falsely implicated in the case. So also he is suffering from various ailments. Hence,

he seeks for his release on bail.

The learned Public Prosecutor has filed a report stating that the first accused, the son of this petitioner has surrendered on the next day before the

police and he was also remanded. The petitioner as well as the first accused were residing together in the house bearing Reg. No.MP-XV/13 and the

contraband article was seized from the ceiling fan of a bedroom of this house. Since, the contraband involved is commercial quantity, the petitioner is

not entitled to be released on bail is the argument advanced by the learned Public Prosecutor.

True that when the quantity of contraband involved is commercial quantity, granting of bail is restricted as per the provisions of Section 37 of the

NDPS Act. Here the MDMA seized is commercial quantity. But it is pertinent to note that on search commercial quantity of MDMA was seized

from a ceiling fan of the particular room occupied by the 1st accused, though the building belongs to the 1st accused. Materials are not sufficient to

infer that this petitioner has concealed those items in the cup of the ceiling fan attached to that particular room. Prima facie it appears that the room

was occupied by the 1st accused, the son of the petitioner. Though the building belongs to this petitioner, datas are not sufficient at this stage to infer

that he was in conscious possession of the contraband articles when it was seized by the police. So the rigour under Section 37 of the Act is not

attracted in the case of the petitioner. Circumstances are not available to show that the petitioner was in conscious possession of commercial quantity

of the contraband and that he himself kept the same for illegal sale. His presence was also not there at the spot when the contraband in commercial

nature was detected. The prosecution has to lead evidence on this aspect at a later stage. So also the prosecution has no case that he has any criminal

antecedents.

So the next question to be answered is whether an offence under Section 118 (i) of the KP Act is prima facie attracted.

9.Section 118 deals with penalty for causing grave violation of public order or danger. Section 118 (i) reads as follows:

“(i) gives or sells those who are below eighteen years any intoxicating substance or to children any articles or substances which are harmful for their physical and

mental health or procure the same near school premises for that purposeâ€​

A reading of this Section itself would clearly shows that there is justification to conclude that the petitioner was not found by the raiding team,

engaged with the sale of intoxicating substances to children as alleged by the prosecution so as to charge him for an offence punishable under section

118(i) of the KP Act. Thus prima facie a case of false implication is made out .

As the petitioner has been in custody for more than 4 months, I find that further detention of this petitioner may not be required for the

investigating agency to proceed with the investigation. Moreover the petitioner is suffering from various ailments and considering his health condition

also, I think that he can be granted bail subject to the following conditions:

(i) The petitioner shall be released on bail on his executing bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to

the satisfaction of the court having jurisdiction.

(ii) The petitioner shall appear before the Investigating Officer for interrogation as and when required by him, in writing, till filing of the final report.

(iii) The petitioner shall not directly or indirectly, make any inducement, threat or promise 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.

(iv) The petitioner shall not commit any offence while on bail.

In case of violation of any of the above conditions, the jurisdictional court is at liberty to cancel the bail in accordance with the law.