Abdul Nissar v. State of Kerala

1 Bail Application No. 11051 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 BAIL APPL. NO. 11051 OF 2023 CRIME NO.40/2022 OF Moovattupuzha Excise Range Office, ``` ``` Ernakulam ``` ## **`PETITIONER/S:`** ``` ABDUL NISSAR AGED 39 YEARS KANDATHINKARA HOUSE, EDAVETTY P.O, THODUPUZHA,IDUKKI DISTRICT, PIN - 685588 BY ADVS. GAYATHRI MURALEEDHARAN ARATHY P. ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2ASSISTANT EXCISE COMMISSIONER EXCISE CRIME BRANCH, ERNAKULAM NORTH, ERNAKULAM, PIN - 682018 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 11051 of 2023 ## **C.S.DIAS,J** **====================== Bail Application No. 11051 of 2023 ----------------------------------Dated this the 10[th] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fifth accused in Crime No.40/2022 of the Excise Range Office, Muvattupuzha, registered against the accused (five in number) alleging them to have committed the offences punishable under Sections 20(b) (ii) (c) , 25, 27A, 29 and 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested on 21.7.2023. 3 Bail Application No. 11051 of 2023 2. The prosecution case, in brief, is that on 10.9.2022 at about 7.15 a.m, the accused 1 to 4 were found jointly transporting 79.200 kgs of ganja in a lorry bearing registration No.KL-38/E 7340 . The accused 1 to 4 confessed that the contraband article was supplied to them by the fifth accused who in turn had procured it from the seventh accused. The sixth accused facilitated the purchase. Thus, the accused have committed the above offences. 3. Heard Smt.Gayathri Muraleedharan, learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondents. 4 Bail Application No. 11051 of 2023 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. In fact, the petitioner was employed abroad. Even going by Annexure A3 mahazar, it is evident that the petitioner was abroad. Moreover, the accused 1 to 3 have been enlarged on bail by the Court of Session, North Paravur in Crl.M.P Nos 1959 and 1954 of 2023 and the fourth accused has been enlarged on bail by this Court in BA No.7940/2023 on 20.10.2023. The petitioner has been languishing in jail since 21.7.2023, which is more than 170 days. The petitioner is willing to abide by any conditions imposed by this Court. The petitioner does not have any criminal antecedents in respect of any offence under the Act. Therefore, the petitioner may be enlarged on bail. 5 Bail Application No. 11051 of 2023 5. The learned Public Prosecutor opposed the application. She submitted that it was the petitioner who supplied the contraband article by purchasing it from the seventh accused. The bank transaction clearly reveals that the petitioner had received money from the accused 1 to 4 and transferred it to the seventh accused. Even though the investigation in the case is complete and the final report has been filed on 3.1.2024 and the charge was framed by the jurisdictional Court , the rigour under Sec.37 cannot be diluted. Hence, the application may be dismissed. 6. It is true that under Sec.37 of the Act this Court would have to find reasonable grounds to come to a conclusion that the accused have not committed the 6 Bail Application No. 11051 of 2023 offence and it is also not likely to commit any offence if he is enlarged on bail. 7. Indisputably, the petitioner was arrested on 21.7.2023. The accused 1 to 4 have been enlarged on bail , who were found in possession of the contraband article. It is on the basis of their confession that the petitioner has been implicated as an accused in the crime. The investigation in the case is complete and the final report has been filed. The matter is now pending consideration before the jurisdictional Court. 8. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the fact that accused 1 to 4 , who were found in possession of the contraband article, have been let off on bail and the investigation in the case is complete and the 7 Bail Application No. 11051 of 2023 petitioner has no criminal antecedents in respect of any offence committed under the Act and he has been in custody for the last 170 days, I am of the view that the rigour under Sec.37 stands diluted in the case. Hence, the petitioner is entitled to be released on bail. In the result, the application is allowed, by directing the petitioner to be released on bail on his executing a bond 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, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person 8 Bail Application No. 11051 of 2023 acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while they are on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders 9 Bail Application No. 11051 of 2023 on the same, in accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- sks/10.1.2024 **C.S.DIAS, JUDGE** 10 Bail Application No. 11051 of 2023 ## **`APPENDIX OF BAIL APPL. 11051/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A1`|`THE TRUE COPY OF THE NOTICE ISSUED UNDER`| ||`SECTION 67 OF NDPS ACT, 1985 NUMBERED ECB-`| ||`13/2022 ISSUED BY ASSISTANT EXCISE`| ||`COMMISSIONER, EXCISE CRIME BRANCH,`| ||`ERNAKULAM DATED 07.01.2023`| |`Annexure A2`|`THE TRUE COPY OF THE ARREST MEMO DATED`| ||`21.07.2023`| |`Annexure A3`|`THE TRUE COPY OF THE MAHAZAR DATED`| ||`21.07.2023`| |`Annexure A4`|`THE TRUE COPY OF THE REMAND REPORT`| ||`SUBMITTED BEFORE HON'BLE JUDICIAL FIRST-`| ||`CLASS MAGISTRATE COURT I, MUVATTUPUZHA`| ||`DATED 21.07.2023`| |`Annexure A5`|`THE TRUE COPY OF THE ORDER OF CRL. M. C`| ||`NO. 2943/2023 IN THE COURT OF SESSIONS,`| ||`ERNAKULAM DIVISION DATED 12.10.2023`|