Aswin P.B v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2023-02-14
Court Decision / Holding: The petition stands allowed. The second accused is released on bail on the following conditions: i) bond for Rs.50,000 with two solvent sureties; ii) not to intimidate witnesses or tamper with evidence; iii) to cooperate with investigation and be available for trial; iv) appearance before the Investigating Officer as directed; v) not to induce or threaten any witness; vi) surrender any passport within seven days of release (or file an affidavit if none). The bail is conditional on not involving in any offence during the currency of bail, with the court noting potential cancellation on violation.
Final Disposition: Bail granted to the petitioner (second accused) with specified conditions.

Parties to the Case

Appellants / Petitioners

Aswin P.B

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Smt. Neema T V, Senior Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Sayed Mansoor Bafakhy Thangal
• Christeena P George

Counsels for Respondents

• Public Prosecutor, State of Kerala
• Smt. Neema T V, Senior Public Prosecutor

Case Synopsis & Summary

This is a regular bail application (B.A. No.343 of 2023) before the Kerala High Court, filed by the second accused, Aswin P.B., in Crime No.1469/2022 of Maradu Police Station, Ernakulam. The offences alleged are punishable under Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS). The first accused allegedly possessed 3.76 grams of MDMA intended for sale and, upon interception near St. Mary’s UP School, Vakayilachan Road, Maradu, contraband was recovered; the first accused reportedly confessed that the contraband was supplied by the second accused, who was arrested on 20.12.2022. The petitioner argues that no contraband was recovered from him and that the arrest rests solely on the confession of the first accused; he has been in custody since 20.12.2022. The Public Prosecutor opposes bail, highlighting the second accused’s purported role as a supplier to various persons and the first accused’s apprehended attempt to sell to school children; reference is also made to a separate NDPS case (Crime No.356/2022) involving the second accused. The court notes the confession as the basis for the arrest but also acknowledges serious concerns about the supply chain and source of contraband, including call details to uncover an interstate network. Ultimately, the court grants bail with stringent conditions, balancing liberty with the need to safeguard investigation and prevent tampering with evidence.

Provisions of Law Cited

Section 439 of the Code of Criminal ProcedureSections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends innocence and asserts that no contraband was recovered from him; his arrest rests solely on the confession of the first accused and he has been in judicial custody since 20.12.2022. He argues that there is no direct recovery from him and that ongoing investigation should continue to determine the source and interstate connections of the contraband. He requests bail on reasonable terms, emphasizing the lack of tangible evidence against him and the presumption of innocence, subject to safeguards.

Contentions of Respondents

The Public Prosecutor contends that the second accused was a supplier of contraband to multiple persons and is connected to the first accused, who was nabbed while attempting to sell to school children. The prosecution points to the second accused’s involvement in another NDPS case (Crime No.356/2022) as evidence of serious criminal activity. It is urged that the source of contraband and call details must be investigated to uncover an interstate narcotics network; given the gravity of the offence and the accused’s alleged role, bail should be refused or conditioned to protect the investigation and prevent tampering.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA,** **1944** **BAIL APPL. NO. 343 OF 2023** **CRIME NO.1469/2022 OF MARADU POLICE STATION, ERNAKULAM** ## **PETITIONER/2ND ACCUSED :** **ASWIN P.B AGED 23 YEARS S/O.BHASI P.S, 451/A, PULIMOOTTIL HOUSE, AYIRETTIL TEMPLE, SOUTH EROOR, EROOR.P.O, THRIPUNITHURA, ERNAKULAM, PIN - 682306** **BY ADVS. SAYED MANSOOR BAFAKHY THANGAL CHRISTEENA P GEORGE** **RESPONDENT/STATE :** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **SMT.NEEMA T V , SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02.02.2023, THE COURT ON 14.02.2023 DELIVERED THE FOLLOWING:** B.A.No.343 of 2023 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------B.A.No.343 of 2023 -------------------------------------------------------Dated this the 14[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 second accused in Crime No.1469 of 2022 of Maradu Police Station, Ernakulam, where he alleged to have committed offences punishable under Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor. B.A.No.343 of 2023 ..3.. 3. I have perused the Case Diary materials along with report produced by the learned Public Prosecutor. 4. The prosecution allegation is that the first accused possessed 3.76 gm of MDMA for the purpose of sale at 21.10 hours on 19.12.2022 near St.Mary's UP School, Vakayilachan Road, Maradu. Accordingly, he was intercepted contraband seized and he was nabbed. Pursuant to recovery and arrest of the accused, crime alleging commission of the above offences was registered and the same is on investigation. As far as the complicity of the petitioner herein, who is the second accused concerned, the first accused given confession statement to the effect that the contraband recovered from the hands of the first accused was given by the second accused and accordingly, he also was B.A.No.343 of 2023 **==> picture [20 x 9] intentionally omitted <==** arrested on 20.12.2022. 5. While pursuing regular bail to the petitioner who has been in custody from 20.12.2022, the learned counsel for the petitioner submitted that the petitioner is innocent and nothing recovered from him. He was nabbed and detained solely on the basis of the confession statement given by the first accused. Pointing out the custody of the petitioner from 20.12.2022 and the substantive improvement in the investigation, the learned counsel pressed for grant of bail. 6. Whereas the learned Public Prosecutor opposed bail, on the submission that, the second accused is a person who has been supplying contraband to various persons and who had supplied the contraband to the first accused and the first accused was nabbed, B.A.No.343 of 2023 ..5.. when he attempted to sell the same to school children. The learned Public Prosecutor also pointed out involvement of the petitioner in Crime No.356 of 2022 of Muhamma Police Station, where the allegation was that he had committed offence under Section 27(b) of the NDPS Act. 7. On perusal of the available materials, it is discernible that the confession statement given by the first accused is the basis on which the petitioner was arrested and incorporated as second accused. At the same time, his involvement in another NDPS crime is a matter of serious concern. Though in the earlier crime, the quantity of contraband seems to be small quantity, the allegation against the petitioner is that he had given contraband to the first accused is having force. 8. It is submitted by the learned Public B.A.No.343 of 2023 ..6.. Prosecutor, as reported by the Investigating Officer, that it is necessary to investigate the source of the contraband and the call details of the accused to find out the interstate lobby behind transport and supply of the contraband. 9. It is true that the petitioner has involvement in another crime. The same is noted with extreme displeasure. However, nothing recovered from him. Since he has been in custody from 20.12.2022, I am inclined to release him on bail on conditions and one among the conditions is that he shall not involve or indulge in any 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. In the result, this petition stands allowed and he B.A.No.343 of 2023 ..7.. is 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 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 B.A.No.343 of 2023 ..8.. 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, the same shall be a reason to cancel the bail hereby granted. Sd/- **A.BADHARUDEEN, JUDGE** rkj B.A.No.343 of 2023 ..9.. ## **APPENDIX OF BAIL APPL. 343/2023** |**PETITIONER**|**ANNEXURES**| |---|---| |**ANNEXURE1**|**THE TRUE PHOTOSTAT COPY OF FIR IN**| ||**CRIME NO.1469 OF MARADU POLICE**| ||**STATION, ERNAKULAM CITY**| |**ANNEXURE 2**|**THE TRUE PHOTOSTAT COPY OF REMAND**| ||**REPORT DATED 20-12-2022 IN CRIME**| ||**NO.1469 OF MARADU POLICE STATION,**| ||**ERNAKULAM CITY SUBMITTED BEFORE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT-**| ||**VIII, ERNAKULAM**| |**ANNEXURE 3**|**THE TRUE COPY OF ORDER DATED**| ||**06-01-2023 PASSED BY ADDITIONAL**| ||**SESSIONS COURT-II, ERNAKULAM**|