Okafor Eze Emmanuel vs State Of Kerala

Mohammed Nias C.P., J

The 6th accused filed BA No.2425/2023, the 8th accused filed BA No.8625/2023 and the 7th accused filed BA No.9164/2022 in Crime No. 731/2022 of Palarivattom Police Station, for having committed offences punishable under Sections 22(c), 8(c), 29 and 27A of the NDPS Act, have filed these applications under Section 439 of the Code of Criminal Procedure seeking regular bail.

The prosecution case is that, on 19.07.2022, at 23.55 hours, the 1st accused was found in possession of 102.04 grams of MDMA. During the investigation, it was revealed that it was the petitioner who procured the said contraband article and gave the same to accused Nos.3, 4 and 5 and supplied the same to the 1st accused. Accordingly, he was implicated as one of the accused and as part of the investigation, the petitioner was arrested on 28.07.2022. Since then, he has been under judicial detention. Even though he submitted an application for regular bail on an earlier occasion it culminated in Annexure-A3 order, by which it was dismissed. This is the second application submitted by him.

The learned counsel for the petitioners submits that the petitioners are innocent of all the allegations and they have been under judicial detention. He also placed reliance upon the order passed in B.A. No. 4344/2023, passed by this Court on 26.09.2023, wherein, the 3rd accused in this case was granted bail. The learned counsel also submits that the investigation in this case is already over and the final report has been submitted. Learned counsel appearing in BA No.2425/2023 argues that though the petitioner is a Nigerian citizen, considering the fact that he has been in custody since 23.8.2022, he may be released on bail going by the principle of law made applicable to A3. Learned counsel also submits that he is prepared to stay in Ernakulam District itself till the completion of the trial. Learned counsel for A7 in BA No.9164/2022 submits that he was arrested on 6.9.2022 and prayed for releasing him on bail taking into account the period of incarceration. Learned counsel appearing for A8 in BA No.8625/2023 submits that he is roped into the case only because of A4 and A5 and since they were granted bail, he also may be enlarged on bail.

On the other hand, the learned Public Prosecutor opposes the said application by pointing out that, one of the reasons which prompted this Court to grant bail to the 3rd accused was that, the charge sheet was not submitted within the statutory period stipulated under Section 167(2) of Cr.P.C. However, it is confirmed that the final report in this case was already submitted. Learned Public Prosecutor opposes the said prayer stating that the accused no 6 sourced the contraband and that he being a Nigerian citizen, there is a likelihood of him absconding. The Learned Public Prosecutor opposes the bail application of the 7th accused and submitted that he has an antecedent under the NDPS Act itself involving a commercial quantity and submitted that he may not be released on bail.

Having heard the rival submissions and considering the fact that A8 is attributed the same role as that of A4 and A5 who are already released on bail as stated by both sides and that no antecedent is reported against him, on grounds of parity, I am inclined to consider the request of the petitioner in B. A 8625/23, the 8th accused and accordingly his bail application will stand allowed.

As far as the petitioner in BA No.9164/2022 is concerned namely A7, there is an antecedent under the NDPS Act itself and therefore I am not inclined to consider his request for bail going by the rigour of S.37 of the Act. That apart, he is a foreign citizen and the apprehension of the prosecution that he may abscond is well founded. As far as the sixth accused is concerned, he is the one who allegedly sourced the contraband making his involvement evident primafacie. He is also a foreign citizen and the prosecution apprehends him fleeing if released on bail. Going by the rigour of Section 37 of the NDPS Act, I am not inclined to consider the request of the 6th accused.

In the result, BA No. 2425/2023 filed by A6 and BA No.9164/2022 filed by A7 will stand dismissed. BA Nos.8625/2023 filed by A8 is allowed on the following conditions:-

(i) The petitioner shall be released on bail on executing separate bonds for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction; one of the sureties shall be a parent or close relative of the petitioner.

(ii) He shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m. for three months or as and when directed to appear.

(iii) He shall not intimidate or attempt to influence the witnesses, nor shall they tamper with the evidence or do anything that might adversely affect the trial;

(iv) He shall not commit any offence while on bail;

(v) He shall not leave the State of Kerala without the permission of the Court having jurisdiction;

(vi) He shall not leave India without the permission of the jurisdictional Court and, if he has passport, shall deposit the same before the Trial Court within a week. If the release of the passports is required at a later period, the petitioner shall be at liberty to move appropriate application for the same before the Court having jurisdiction.

(vii) He shall furnish their present address along with his mobile number to the Court concerned as well as to the investigating officer.

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

Accordingly, BA No. 2425/2023 filed by A6 and BA No.9164/2022 filed by A7 will stand dismissed. BA Nos.8625/2023 filed by A8 is allowed.