Ashiqul Islam v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-02-01
Court Decision / Holding: The bail application is allowed. The petitioner Ashiqul Islam is to be released on bail on a bond of Rs.50,000 with two solvent sureties of like amount, subject to the listed conditions (appearance before IO every Saturday for two months or until final report, no inducement or tampering, no offense while on bail, surrender of passport if any, not leaving Thrissur Sessions Division without permission, providing present address and mobile number to IO; violation may lead to cancellation; modifications possible). The Investigating Officer may continue investigations and effect recoveries as laid down by law, including reference to Sushila Aggarwal v. State (NCT of Delhi) and another. The order notes the appeal to the Supreme Court precedent to permit recoveries during bail.
Final Disposition: Bail application allowed; accused released on bail with stringent conditions.

Parties to the Case

Appellants / Petitioners

Ashiqul Islam

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam, Kochi

Legal Representation & Advocates

Counsels for Petitioners

• Nireesh Mathew

Counsels for Respondents

• C. S. Hrithwik

Case Synopsis & Summary

This is a bail application under Section 439 CrPC filed by Ashiqul Islam, the sole accused in Crime No.56/2023 of the Excise Enforcement & ANSS, Thrissur, for alleged possession of 10 kilograms of ganja on 25.10.2023 under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The petitioner, from Assam, contends innocence and false implication, having been in judicial custody since 25.10.2023; the investigation is nearly complete and recovery has been effected; the accused has no criminal antecedents; the contraband quantity is categorized as intermediate. The prosecution contends that the petitioner’s origin abroad and the magnitude of the seizure raise the risk of flight and potential reoffending, and thus bail should be denied, though they concede the ongoing investigation and final report have been filed. After evaluating the materials, the High Court notes the petitioner’s custodial status since late 2023, near completion of investigation, recovery of contraband, lack of antecedents, and the intermediate quantity, concluding that continued detention is unnecessary. The court grants bail subject to stringent conditions, including bond for Rs.50,000 with two sureties, periodic appearances before the IO, no inducement or tampering, surrender of passport, restriction from leaving Thrissur, and to provide current address/mobile number, with power to cancel bail for breach. The order cites Supreme Court precedent for recoveries during bail (Sushila Aggarwal v. State) to justify ongoing investigative actions while on bail.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends total innocence and false implication; has been in custody since 25.10.2023; investigation nearly complete; contraband recovered; no prior criminal record; seeks bail on grounds of not requiring continued detention and the likelihood of fair trial if released, subject to appropriate conditions.

Contentions of Respondents

The State argues risk of flight and potential reoffending given the petitioner’s Assam origin and the magnitude of seizure; however, they concede the investigation is near completion and a final report is filed, yet request detention or denial of bail on grounds of public interest and security.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited to justify that recoveries may be effected during bail; used to support ongoing investigative actions while bail is in force.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945** **BAIL APPL. NO. 588 OF 2024** **CRIME NO.56/2023 OF Thrissur E.E., Thrissur** ## **PETITIONER/S:** ASHIQUL ISLAM AGED 25 YEARS S/O.KASIM ALI, UPPER KAHUNDA VILLAGE, KAMPUR POLICE STATION LIMIT, NAGON DISTRICT, ASSAM., PIN - 782426 BY ADV NIREESH MATHEW ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 ## **OTHER PRESENT:** SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 588 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.56/2023 of the Excise Enforcement & ANSS, Thrissur, registered against the petitioner for allegedly committing the offences punishable under Sec.20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested on 25.10.2023. 2. The gist of the prosecution case is that: around 3.45 p.m. on 25.10.2023, the accused was found in possession of 10 kilograms of ganja on the platform no.1 of Thrissur Police Station. Thus, the accused has committed the above offences. 3. Heard; Sri.Nireesh Mathew, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. BAIL APPL. NO. 588 OF 2024 3 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody since 25.10.2023. The investigation in the case is practically complete and the recovery has been effected. The petitioner has no criminal antecedents. The contraband that has been seized is of intermediate quantity. The petitioners' continued detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He contended that the petitioner was found in possession of 10 kilograms of ganja. The petitioner belongs to the State of Assam. If the petitioner is enlarged on bail, there is every likelihood of him fleeing from justice and also committing similar offences. BAIL APPL. NO. 588 OF 2024 4 Nonetheless, he conceded to the fact that the petitioner has been in judicial custody since 25.10.2023 and the final report has been laid. Hence, the application may be dismissed. 6. On an analysis of the materials placed on record, particularly taking note of the fact that the petitioner was arrested on 25.10.2023, that the investigation in the case is practically complete, that recovery has been effected, that the petitioner has no criminal antecedents and that the contraband is of intermediate quantity, I am of the definite view that the petitioner's continued detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions: In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with BAIL APPL. NO. 588 OF 2024 5 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 on - Investigating Officer every Saturday between 9 a.m. and 11 a.m for a period of two 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; BAIL APPL. NO. 588 OF 2024 6 (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) The petitioner shall not leave the territorial jurisdiction of the Thrissur Sessions Division without previous permission of the jurisdictional court. The petitioner shall furnish his present address and mobile number to the Investigating Officers. - (vi) 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. (vii) Applications for deletion/modification of the bail conditions shall be filed and BAIL APPL. NO. 588 OF 2024 7 entertained before the court below. (viii) 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/- **C.S.DIAS JUDGE** rkc/01.02.24 BAIL APPL. NO. 588 OF 2024 8 ## **APPENDIX OF BAIL APPL. 588/2024** PETITIONER ANNEXURES Annexure 1 FREE COPY OF THE ORDER DATED 08.01.2024 IN CRL.MP.NO.7008/2023 PASSED BY THE I ADDL. SESSIONS JUDGE (SESSIONS JUDGE-INCHARGE), THRISSUR