Mjith Zaim vs State Of Kerala

Application under Section 438 of the Cr.P.C for anticipatory bail.

The applicant is the 12th accused in Crime No. 64 of 2020 of Elamakkara Police Station for having allegedly committed offences punishable under

sections 22 (c), 8 (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution case, in brief, is that the 1st accused

is a Nigerian National staying illegally in India distributing drugs among Indians. It is stated that A6 had withdrawnR s. 18,000/-from his bank account

and send it to the account of A5 and in turn, he sent the amount to the account of A3. Thereafter the accused persons decided to get Narcotic drug

from Bangalore. A4 was studying for M.B.A in Bangalore. A2 and A3 drove down in a Maruti car to Bangalore and met A4. The three of them met

A1, the Nigerian National, and purchased MDMA from him and A2 and A3 brought the drug to Kerala and occupied room No.303 of 'OYO' rooms at

Ranadive road, Edappally North for facilitating distribution of the drugs. It is alleged that A7 had booked a similar 'OYO' room at Lakshamveedu

colony for facilitating the stay of A5 to A12 for the purpose of consuming and distributing drugs. On 02/03/2020 at about 6 PM, the Sub Inspector of

Police, Elamakkara Police Station, on getting information, conducted search of room No.303 occupied by A2 and A3 and seized 15 grams of MDMA

from the possession of A2 and three grams of MDMA from the possession of A3. On the basis of the confession statements given by them, A4 to

A12 were arraigned as accused in the crime. Accused Nos.2 to 5, 8, 9 and 11 were granted regular bail by the Sessions Court consequent to the

arrest. A7 was granted anticipatory bail under Section 438 Cr.P.C by the Sessions Court. The bail application filed by A12, the applicant herein, was

rejected for the reason that he is alleged to be the main person who had arranged the rooms for the prime accused where the alleged transaction of

contraband articles had taken place. Hence the applicant has approached this Court for indulgence and seeks pre-arrest bail stating that there is

absolutely no material to indicate his involvement in the crime. No incriminating materials were seized/recovered from him. Hence, he cannot be

detained for custodial interrogation. The applicant is a 20 year old student pursuing his 2nd year B.Com in SCMS College, Kalamassery. It is stated

that he was not present in the room from where the contraband was seized. There is a statement given by A7 to the effect that the the applicant had

given him Rs.1500/-during December 2019 for procuring the contraband. The applicant has no criminal antecedents. It is therefore prayed that the

applicant may be granted pre-arrest bail.

The learned counsel appearing for the applicant and the learned Public Prosecutor were heard. Records perused.

The investigating officer has filed a written objection stating that the applicant has to be subjected to custodial interrogation and that he is the main

accused who had contrived the idea of acquiring drugs and distributing it. 'OYO' rooms were arranged by him to facilitate the pushing of drugs. It is

true that A7 was granted anticipatory bail by the Sessions Court. The said order is being challenged in appeal by the prosecution.

From the materials collected by the investigating officer so far, it is seen that the A9 had booked an 'OYO' room using the email ID of a person

named Prayil Ayman from Malappuram without his knowledge. Similarly, A7 also had used the email ID of one Nasseeruddin to book 'OYO' rooms.

Moreover, the call detail records pertaining to the mobile phone of the applicant indicate his presence near the scene of occurrence. He had marked

his attendance in the college in the morning but thereafter he had absented himself and had reached the scene of occurrence for the purpose of

distribution of drugs. Hence, it is prayed that the the application for anticipatory bail may be rejected.

Even though the crime indicates registration of an offence under Section 22 (c) of the NDPS Act for the accused being in possession of

commercial quantity of narcotic drug, it is admitted by the prosecution that the Regional Forensic Laboratory, Kuttanad has identified the seized

contraband not as MDMA but as methamphetamine. Serial No.159 of the Schedule attached to the NDPS Act requires a quantity of more than 50

grams of methamphetamine to become a commercial quantity. The total quantity of contraband seized in this case is only 18 grams, an intermediary

quantity, hence the offence under Section 22(c) may not be attracted. The rigour under Section 37 of the NDPS Act also may not be attracted in this

case. Most of the accused in this crime have been granted regular and anticipatory bail. The applicant is also a 20 year old student without any

previous antecedents of involvement in similar crimes. His complicity is based on mobile tower location and statements of coaccused. That may not be

sufficient to find him guilty. Under the circumstances, the applicant is entitled to prearrest bail in this crime.

In the result, the bail application is allowed. The applicant is directed to surrender before the investigating officer within two weeks. In the event of

his arrest, he shall be released on bail on execution of bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for like amount each to

the satisfaction of the arresting officer and on following conditions:

(i) The applicant shall appear before the investigating officer on all Saturdays between 9 AM and 12 noon for a period of three months or till the filing

of the final report, whichever is earlier;

(ii) The applicant shall not tamper with evidence, influence or intimidate witnesses;

(iii) The applicant shall not get involved in offences of similar nature during the bail period;

In the event of the applicant committing breach of the above conditions, the prosecution shall be at liberty to apply for cancellation of the before the

jurisdictional Court.