Muhammed Sharon vs State Of Kerala

Mohammed Nias C.P., J.

This is an application filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.

The petitioner is the second accused in Crime No.654/2022 of Sreekariyam Police Station, Thiruvananthapuram District, for having committed offences punishable under Sections 22C and 29 of the Narcotic Drugs and Psychotropic Substances Act.

The prosecution allegation is that, on 31/07/2022 at about 11.45 p.m., at Aniyarathala Chathayam House in Cheruvaickal Village, the police searched the premises of the first accused, and the first accused was found in possession of 74 grams of MDMA. The second, third and fourth accused were present in the house and thereby committed the above offence.

Heard the learned counsel for the petitioner and the learned Public prosecutor.

Learned counsel for the petitioner submits that there was no recovery from the second accused as the seizure was from the first accused. He also argues that the charge sheet was filed within three months without even waiting for the FSL report and now, it has been 443 days since he is in judicial custody. The prosecution also sought for a further investigation and A5 was implicated later. Learned counsel points out that A1 and A4 are granted bail by this Court. It is also submitted that there is an infraction of Sections 42 and 50 of the NDPS Act.

The learned Public prosecutor, on the other hand, opposing the bail application submits that the petitioner was arrested from the spot and the seizure was and that he has an antecedent under the NDPS Act itself as, Excise Range Office, Amaravila has registered a case against the petitioner on 09/12/2018 as Crime No.59/2018 under Section 20(b) (ii)(B) of the NDPS Act in connection with the possession of 2 kilograms of ganja and the case is now pending trial before the Additional District and Sessions Judge-I, Thiruvananthapuram as SC 565/2020. Accused Nos.1 and 4 who were granted regular bail did not have any criminal antecedents and therefore the petitioner cannot claim parity with the said accused. He also submitted that in further investigation it was found that there is a likelihood of more accused being involved in the crime.

After considering the rival contentions, the contention of the learned counsel appearing for the petitioner for grant of bail on the grounds of parity of A1 and A4 having been granted bail, it has to be straight away noticed that in both those cases, it was specifically found that there were no antecedents against the accused and therefore applying the principle in Fasil v. State of Kerala [2023 (3) KHC 2121], bail was granted. As far as this petitioner is concerned, there is antecedent under the NDPS Act itself as stated above and therefore the petitioner cannot be released on bail on the argument of parity with A1 and A4. That apart, it is to be noted that the specific case of the prosecution was that A1 was the seller of the contraband and A2, A3 and A4 were the buyers of the prohibited drug. It is also to be noticed that in the custodial interrogation of A1, A2 and A3, the accused did not cooperate and therefore the source of MDMA could not be traced. The discovery of some facts proves the involvement of more accused, that a request was submitted before the Sessions Court to stop the trial and permit further investigation under Section 173(8)of the Cr.P.C. which was allowed by the Sessions Court by its order dated 22/07/2023 and it was thereafter that one person, Mr.Shamnas was added as the A5. Taking into account the above facts, and in particular, the fact that the petitioner has a criminal antecedent, I am not inclined to grant bail to the petitioner.

Accordingly, the bail application will stand dismissed.