Abdul Majeed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 BAIL APPL. NO. 10645 OF 2022** **CRIME NO.751/2022 OF BAKEL POLICE STATION, KASARAGOD PETITIONER/ACCUSED NO.1:** **ABDUL MAJEED AGED 37 YEARS S/O.ABDULLA, R/AT MOSODI HOUSE, MOSODI, UPPALA VILLAGE, KASARAGOD TALUK AND DISTRICT, PIN - 671322** **BY ADV P.RAKESH THAMBAN** ## **RESPONDENT/COMPLAINANT :** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM (SHO KASARAGOD POLICE STATION)** ## **BY SMT.NEEMA T.V., SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.10645 of 2022 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------B.A.No.10645 of 2022 -------------------------------------------------------Dated this the 6[th] day of February, 2023** ## **O R D E R** This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the petitioner who is the first accused in Crime No.751 of 2022 of Bakel Police Station, Kasaragod. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor. 3. I have perused the Case Diary materials produced by the learned Public Prosecutor. 4. The precise allegation of the prosecution is that at 23.55 hours on 01.10.2022, accused Nos.1 B.A.No.10645 of 2022 ..3.. and 2 had possessed 10.990 grams and 3.070 grams of MDMA for the purpose of sale and they had transported the same on a motorcycle ridden by them bearing registration No.KL-14-P 9639. On the said premise, crime was registered alleging commission of offences punishable under Sections 22(c) and 22(b) of the Narcotic Drugs and Psychotropic Substances Act. 5. While arguing for grant of regular bail to the petitioner, the learned counsel for the petitioner would submit that the contraband involved in this case is not MDMA and as per the chemical analysis report, the contraband was found to be Methaphetamine. According to the learned counsel for the petitioner, the first accused alleged to have possessed 10.990 grams of MDMA and the contraband found to be Methaphetamine and the same is intermediate quantity. Therefore, the offences alleged under Sections 22(c) and 22(b) of the B.A.No.10645 of 2022 ..4.. NDPS Act are not established prima facie. He also would submit that, in view of the possession of Methaphetamine to the tune of 10.990 grams, the same would attract offence under Section 22(b) of the NDPS Act. Since the contraband is commercial quantity, rider under Section 37 would not apply and accordingly, the petitioner, who has been in custody from 01.10.2022, is liable to be released on bail. 6. Although the learned Public Prosecutor opposed bail, she has placed copy of chemical analysis report. The same would suggest that the contraband is not MDMA but that is Methaphetamine. Going through the schedule of NDPS Act, 50 gms and above of Methaphetamine is commercial quantity and less than the same is intermediate quantity. Therefore, the prosecution allegation as to possession of commercial quantity of contraband could not be justified as per the B.A.No.10645 of 2022 ..5.. chemical analysis report, though the same would attract the offence for possession of intermediate quantity of Narcotic Drugs and Psychotropic Substances. 7. In view of the factual scenario, the rider under Section 37 of the NDPS Act would not apply. If so, the petitioner, who has been in custody from 01.10.2022 and a first time offender, need not be detained in custody further. Therefore, he can be enlarged on bail on conditions. Therefore, this petition stands allowed and he will be released on bail on the following conditions: i. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the jurisdictional court concerned. ii. The petitioner shall not intimidate the B.A.No.10645 of 2022 ..6.. witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. iii. The petitioner shall appear before the Investigating Officer as and when directed. iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer. v. The petitioner shall surrender his passport, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter. vi. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this court, B.A.No.10645 of 2022 ..7.. the same shall be a reason to cancel the bail hereby granted. Sd/- **A.BADHARUDEEN, JUDGE** rkj B.A.No.10645 of 2022 ..8.. **APPENDIX OF BAIL APPL. 10645/2022** **PETITIONER ANNEXURES ANNEXURE A1** **THE TRUE INTERNET COPY OF THE DISMISSAL ORDER IN BA.NO.9363/2022**