Althaf v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1087 OF 2024 ``` ``` CRIME NO.14/2024 OF Kollam East Police Station, Kollam AGAINST THE ORDER IN DATED 02.02.2024 IN CRMC NO.144 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOLLAM ``` ## **`PETITIONER:`** ``` ALTHAF, AGED 25 YEARS S/O SHARAFUDEEN, SAJEENA MANZIL, VALATHUNGAL CHERRY, ERAVIPURAM VILLAGE, KOLLAM DISTRICT, PIN - 691011 ``` ``` BY ADV N.SUNIL JOSEPH ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2THE STATION HOUSE OFFICER , KOLLAM EAST POLICE STATION, KOLLAM DISTRICT, PIN - 691001 ``` ``` BY SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. No.1087 of 2024 2 ## **Dated this the 5[th] day of March, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.14/2024 of the Kollam East Police Station, registered against him for allegedly committing the offences punishable under Sections 22 (C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 02.01.2024. 2. The gist of the prosecution case is that: on 02.01.2024 at around 14.40 hours, the accused was found in possession of 12 grams of MDMA and 15.5 grams of Ganja. He was arrested with the contraband articles then and there from the spot. Thus, the accused has committed the above offences. 3. Heard; Sri. N. Sunil Joseph, the learned counsel B.A. No.1087 of 2024 3 appearing for the petitioner and Smt.Neema. T.V. the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime due to the previous animosity of the police against him. The petitioner has been in judicial custody since 02.01.2024, which is more than three months. The investigation in the case is practically complete, and recovery has been effected. The contraband allegedly seized from the petitioner is not MDMA, but only Methamphetamine. Therefore, the contraband is only of an intermediate quantity. Hence, the petitioner is entitled to be released on bail. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that 12 grams of MDMA, which is of commercial quantity, was seized from B.A. No.1087 of 2024 4 the possession of the petitioner. In addition to the same, the petitioner is involved in five other crimes i.e., Crime Nos.2308/2017, 2309/2017 and 227/2021 of the Eravipuram Police Station and Crime Nos.134/2023 and 86/2023 of the Kottiyam Police Station for committing the offences under the IPC. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Therefore, the application may be dismissed. Nonetheless, the learned Public Prosecutor made available the Chemical Analysis Report of the State Forensic Science Laboratory, Police Department, Government of Kerala, dated 27.02.2024, which shows that the contraband that was allegedly seized from the petitioner is not MDMA, but Methamphetamine. 6. The prosecution allegation against the petitioner is that the petitioner was found in possession of 12 grams of MDMA. On the basis of the said accusation, the petitioner was arrested, and he is remanded to judicial custody. B.A. No.1087 of 2024 5 Now, it has turned out, as per the Chemical Analysis Report, dated 27.02.2024 of the State Forensic Science Laboratory, that the contraband is Methamphetamine and not MDMA, as alleged by the prosecution. Therefore, the contraband is of an intermediate quantity. 7. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, particularly after going through the Chemical Analysis Report referred to above, that the petitioner has been in judicial custody since 02.01.2024, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the definite view that, notwithstanding the petitioner's criminal antecedents, the petitioner is entitled to be released on bail. . Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a B.A. No.1087 of 2024 6 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 on every alternate Saturdays between 9 a.m. and 11 a.m for a period of three months or till the final report is filed, whichever is earlier. He shall also 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 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 he is on bail; B.A. No.1087 of 2024 7 (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 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 8 B.A. No.1087 of 2024 # Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663]** . Sd/- **C.S.DIAS, JUDGE** mtk/05.03.24 B.A. No.1087 of 2024 9 ## **`APPENDIX OF BAIL APPL. 1087/2024`** ## **`PETITIONER ANNEXURES`** ## **`Annexure-A1`** ``` TRUE COPY OF THE ORDER DATED 02.02.2024 IN CRL.M.C NO. 144/2024 OF THE HON'BLE PRINCIPAL SESSIONS COURT, KOLLAM. ```