Abhin T.S. vs State Of Kerala

Ziyad Rahman A.A., J

The petitioner is the 2nd accused in Crime No.1540/2022 of Ernakulam Town North Police Station which was registered for the offences punishable under Sections 22(c) and 29 of NDPS Act. The case is now pending as SC No.225/2023 before the First Additional Sessions Court, Ernakulam.

The prosecution case is that on 17.12.2022 at about 07.20 p.m., the Police while conducting search in a building situated at Elamkulam, found a shoulder bag kept in a room of the said building and on inspection it was found that the bag contained 120 grams of MDMA. (Later it was identified as Methamphetamine). The petitioner along with two other persons who were present in the building at the relevant time, were arrested on the same day. Since then he has been under judicial detention. Even though the petitioner has approached this Court seeking regular bail, the same was dismissed as per Annexure A1 order. This is the second application submitted by him.

Heard Sri.Binu Paul, learned counsel appearing for the petitioner and Sri.T. Jayan, learned Public Prosecutor appearing for the State.

The learned counsel appearing for the petitioner submits that the petitioner is innocent of all the allegations. It was also contended that the materials now produced by the prosecution along with the final report are not sufficient to implicate the petitioner for the offences alleged. Besides the same, the petitioner is in custody since 17.12.2022 and since final report is already submitted, there is no purpose in keeping the petitioner under detention. The learned counsel for the petitioner also brought the attention of this Court to Annexure A2 order passed by this Court by which the 1st accused was already granted bail on 14.02.2024.

On the other hand, the learned Public Prosecutor opposes the said application by pointing out that there are ample materials indicating the complicity of the petitioner. However, it was admitted that the petitioner was not involved in any other offences.

I have carefully gone through the records. One of the contention raised by the learned counsel of the petitioner is that, no recovery was affected from the physical possession of the petitioner. On perusal of the records it is seen that, the recovery was affected from a shoulder bag kept in the building where the search was conducted. There is a fair amount of controversy as to the person to whom the said bag was belonged to. Now the petitioner has been in judicial custody since 17.12.2022 and more than one year has been elapsed. There is no criminal antecedence for the petitioner also. The main reason for implicating the petitioner as an accused was his presence in the building at the relevant time. When all the aforesaid aspects are taken into consideration, I am of the view that, there is some force in the contention put forward by the learned counsel for the petitioner. On an overall analysis of the materials, I find that there are satisfactory materials for establishing the dual conditions contemplated under Section 37 of the NDPS Act. This is particularly because the petitioner is not having any criminal antecedence. Besides the same, the 1st accused against whom similar allegations were placed was already released on bail. In such circumstances, I do not find any reason to detain the petitioner any further and therefore, he can be released on bail with appropriate conditions to ensure his cooperation with the trial.

In the result, this application is allowed and the petitioner is directed to be 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) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall appear before the trial court as and when required.

(iii) The petitioner shall surrender his passport before the jurisdictional court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court.

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

(v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The petitioner shall not leave India without the permission of the jurisdictional Court.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law.