Aju v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 BAIL APPL. NO. 985 OF 2023 CRIME NO.866/2022 OF KILIKOLLOOR POLICE STATION AGAINST THE ORDER/JUDGMENT CRMC 2202/2022 OF DISTRICT ``` ``` COURT & SESSIONS COURT, KOLLAM ``` ## **`PETITIONER/3RD ACCUSED:`** ``` AJU AGED 23 YEARS S/O.MANZOOR, VAYALIL PUTHEN VEEDU, KAVERI NAGAR, NEAR KOCHUKULAM, KALLUMTHAZHAM P.O, KILIKOLLOOR VILLAGE, KOLLAM DISTRICT, PIN - 691004 BY ADVS. PRATHEESH.P ANJANA KANNATH ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER KILIKOLLOOR POLICE STATION, KOLLAM DISTRICT, PIN – 691004 BY SMT.T.V.NEEMA, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 985 of 2023 ``` ``` 2 ``` ## **ORDER** Dated this the 1[st] day of March, 2023 This is an application for regular bail moved by the 3[rd] accused in crime No.866/2022 of Kilikolloor police station, alleging commission of offences punishable under Sections 22(c), 22(b)(ii) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience). 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents forming part of the case diary as well as the chemical analysis report dated 31.01.2023 obtained from State Forensic Science Laboratory, Thiruvananthapuram. 4. The prosecution allegation is that, on 25.08.2022 the Kilikollor Police searched at Jeena Lodge, Karikode. On ``` BAIL APPL. NO. 985 of 2023 ``` ``` 3 ``` search, the police party seized MDMA and ganja from accused Nos.1 to 3. According to the prosecution, the police seized 18.740 gram of MDMA and Rs.79,050/- from the 1[st] accused and from the possession of the 2[nd] accused, the police seized 36 grams and 650 milligrams of ganja and Rs.42,310/-. It is further alleged that from the custody of the 3[rd] accused 4.37 gram of MDMA and Rs.9,290/- was seized and from the possession of the 4[th] accused 0.520 gram of MDMA was seized. 5. It is submitted by the learned counsel for the petitioner that, as per the chemical analysis report filed along with the charge sheet, a certified copy of which has been obtained by the petitioner and placed before this Court, the contraband is found to be ‘Methamphetamine’ and not ‘MDMA’. If the contraband is ‘Methamphetamine’, 50 gram is the quantity required to constitute the same under the head ‘commercial quantity’. Thus, counting the total quantity of MDMA (18.740 + 4.37 +.520), the same is lesser than 50 gram ``` BAIL APPL. NO. 985 of 2023 ``` ``` 4 ``` of ‘Methamphetamine’ and the same is intermediate quantity. Therefore, the offence would attract in this case is one under Section 22(b) of the NDPS Act and not under Section 22(c) of the NDPS Act. He also pointed out that grant of bail to accused Nos.1 and 2 by this Court as per common order in B.A.Nos.1167/2023 and 1207/2023 dated 20.02.2023, acting on the chemical analysis report. While canvassing regular bail to the accused, the learned counsel for the petitioner pointed out his custody from 25.08.2022 onwards and also filing of final report in this crime. 6. Though the learned Public Prosecutor initially raised doubt about the quantity of the contraband, even admitting the same as ‘ Methamphetamine’, to treat the same as intermediate quantity, on calculating the quantity of the contraband, the same would come below 50 gram of Methamphetamine and therefore, the same is nothing, but intermediate quantity of contraband. 7. It is pointed out by the learned Public Prosecutor ``` BAIL APPL. NO. 985 of 2023 ``` ``` 5 ``` that the 3[rd] accused is a person with criminal antecedents and he had involvement in four more crimes, viz., Crime No.13/22 of Varakala Excise Range under Section 22(b) of the NDPS Act, Crime No.2655/2016 of Kollam East police station under Sections 379 and 201 r/w 34 of IPC, crime No.1589/2016 under Sections 341, 324 and 427 r/w 34 of IPC and crime No.1982/2017 of Kilikolloor police station under Sections 232, 324, 341, 452 and 294(b) of IPC and one among the crimes is NDPS crime of the year 2022, involving intermediate quantity. The attitude of the petitioner in repeatedly involving in crimes, including heinous crimes is a matter of serious concern and the same is noted with extreme displeasure. However, taking note of the custody of the petitioner from 25.08.2022, he can be enlarged on regular bail by imposing stringent conditions and one among the one among the conditions is that, the petitioner shall not involve in any other offence during the currency of bail hereby granted and any such event, if reported, or came to the notice of this court, the same by itself ``` BAIL APPL. NO. 985 of 2023 ``` ``` 6 ``` shall be a reason to cancel the bail hereby granted. In the result, this bail application stands allowed. The petitioner is enlarged 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 Special court concerned. - ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial. - iii. 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. - iv. 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 ``` BAIL APPL. NO. 985 of 2023 ``` ``` 7 ``` or within 3 days thereafter. v. 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, the same shall be a reason to cancel the bail hereby granted. **Sd/-** **A. BADHARUDEEN JUDGE** nkr ``` BAIL APPL. NO. 985 of 2023 ``` ``` 8 ``` ## **`APPENDIX OF BAIL APPL. 985/2023`** ``` PETITIONER ANNEXURES Annexure A1THE COPY OF FIR IN CRIME NO.866/2022 OF KILIKOLLOOR POLICE STATION DATED 25.8.2022 Annexure A2THE COPY OF THE ORDER IN CRL.M.C NO. 2202/2022 DATED 9.11.2022 ON THE FILE OF SESSIONS COURT, KOLLAM ```