Kisor Mali vs State Of Kerala & Anr.

This is the second application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking regular bail.

The applicant is the accused No.2 in Crime No.218/2026 of Town North Police Station, Palakkad District. The offences alleged are punishable under Section 20(b)(ii)(C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act).

The prosecution case, in short, is that on 23.02.2026, at about 8:30 a.m., the accused Nos. 1 to 3 were found in possession of 12.161 kg, 8.508 kg, and 8.025 kg of Ganja, respectively, seized from the bags they were carrying. In total, 28.694 kg of Ganja was seized from the accused persons near the escalator on Memu Shed Road at Olavakkode Railway Station. The Ganja had been transported from Odisha for the purpose of sale in contravention of the NDPS Act and thereby committed the offences.

I have heard Sri. P. Mohamed Sabah, the learned counsel for the applicant and Sri. Thomas Sabu Vadakekut, the learned Public Prosecutor. Perused the case diary.

The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to bail. On the other hand, the learned Public Prosecutor submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicant, and he is not entitled to bail at this stage.

The case diary would show that at the time of seizure, the accused Nos. 1 to 3 were standing near the railway station. All of them are natives of Odisha. Accused Nos. 1 and 3 are husband and wife. The total contraband seized from the possession of the accused Nos. 1 to 3 is 28.69 kg of Ganja. The contraband seized from the possession of the applicant alone is 8.508 kg. The learned counsel for the applicant relying on the decision of the Apex Court in Nadeem Ahamed v. State of West Bengal (2025 KHC OnLine 6704), submitted that inasmuch as there is no material to show the conspiracy between the applicant with the remaining accused, the contraband seized from the possession of the accused Nos. 1 and 3 cannot be clubbed. The learned counsel further submitted that the contraband seized from the possession of the applicant alone would come to intermediate quantity, and hence, the rigour of Section 37 of the NDPS Act will not be attracted against the applicant. On the other hand, the learned Prosecutor submitted that all of them are natives of Odisha, the packing of the contraband seized is similar and hence the contraband seized from them can be clubbed together to determine the quantity.

In Nadeem Ahamed (supra) it was held that merely because two accused, walking side by side, were apprehended simultaneously, and both were carrying narcotic drug concealed on their body, the said coincidental happening, by itself, would not give rise to an inference that either of them had knowledge about the contraband being carried by the other. Positive and tangible evidence was necessary to establish, beyond reasonable doubt, that both the accused persons had prior knowledge of contraband in the other's possession. In this case also, apart from the allegation that the applicant was found along with the remaining accused near the railway station, there is no evidence to establish any conspiracy or prior meeting between them. No call records, travel details or financial transactions have been unearthed by the investigating agency to connect the applicant with the crime. Since, the accused Nos. 1 and 3 are husband and wife, at the best the contraband seized from them could be clubbed. At any rate, the contraband seized from the possession of the applicant cannot be clubbed with the other accused in the absence of any material. Hence, I am of the view that the rigour of Section 37 of the NDPS Act cannot be attributed against the applicant. The applicant is in custody since 23.02.2026. He has no criminal antecedents. The investigation is over and the final report has been filed. For these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose. Hence, the applicant is entitled to be released on bail.

In the result, the application is allowed on the following conditions: -