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High Court of KeralaSingle JudgeThe bail application is allowed; the petitioner...

Baber Ali Sekh v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 1927 OF 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A. BADHARUDEEN
Judgment Date
2023-03-22
Court Decision / Holding
The petition stands allowed and the petitioner is enlarged on bail on the following conditions: bond for Rs.75,000 with two solvent sureties from Kerala; production of identity documents (Election Commission of India/Aadhaar) with attested copies; a letter from SHO confirming residence and contact numbers; regular appearance for investigation (every Tuesday between 9 am and 12 noon for two months); no intimidation or tampering with evidence; cooperation with investigation; surrender of passport if any; no travel outside Kerala without court permission; and other standard bail conditions including non-entry into further offences.
Final Disposition
The bail application is allowed; the petitioner Baber Ali Sekh is enlarged on regular bail with conditions as stated.

Parties to the Case

Appellants / Petitioners

  • Baber Ali Sekh

Respondents

  • State of Kerala represented by Excise Inspector, Malappuram, Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • T.K. Rajeshkumar
  • • Manoj V George
  • • Keerthana.V
  • • Angel Mary Aju
  • • Dhananjay
  • • Deepak
  • • T.N. Bindu

Counsels for Respondents

  • • Smt. T. V. Neema, Senior Public Prosecutor

Case Synopsis & Summary

On 22 March 2023, the Kerala High Court heard Bail Application No. 1927 of 2023 filed by Baber Ali Sekh, the first accused in Crime No. 4/2023 of the Malappuram Excise Range Office. The application sought regular bail under section 439 CrPC, challenging the detention since 26 January 2023 after excise officials seized 2 kilograms of ganja from an autorickshaw during a vehicle check near Government High School, Irumbazhi, Malappuram. The NDPS Act, 1985 offences alleged are Sections 20(b)(ii)B and 29. The prosecution contends that the recovery was red-handed and that the accused’s native place is West Bengal, rendering him a potential flight risk and undermining the prosecution if released. It is also noted that this is the second NDPS case against the petitioner (No. 218/2022, Kuttipuram). The petitioner's counsel argued that the investigation has progressed and that bail with appropriate conditions will secure appearance and cooperation: bond of Rs.75,000 with two solvent Kerala-based sureties; identity documents (Election Commission/Aadhaar); letters from the SHO; and standard conditions to prevent intimidation, tampering with evidence, and flight. The Public Prosecutor urged caution, emphasizing the gravity of the offence, flight risk, and prior NDPS involvement. The court, after reviewing the case diary, granted regular bail with conditions outlined in the order.

Provisions of Law Cited

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)Code of Criminal Procedure, 1973 – Section 439Sections 20(b)(ii)B and 29, NDPS Act

Legal Doctrines & Maxims

  • prima facie

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner seeks bail under Section 439 CrPC, contending custody since 26.01.2023 and progress in investigation warrant an exercise of judicial discretion in favour of bail. He offers to furnish a bond of Rs.75,000 with two solvent Kerala-based sureties and to produce identity documents (Election Commission/Aadhaar) along with SHO verification to secure presence for trial. He emphasises no immediate risk of flight if conditions ensuring cooperation and regular appearance are imposed; points to the gravity of the offence being mitigated by the assessment that the contraband quantity is intermediate and that he has roots in Kerala through family and residence. The defence asserts compliance with conditions like no witness intimidation, constant cooperation, appearance on fixed dates, passport surrender if available, and travel restrictions within Kerala, arguing that release on bail will not undermine the prosecution.

Contentions of Respondents

The State opposes bail on two fronts: (i) the recovery of 2 kg ganja in red-handed circumstances and the NDPS offence indicate a strong case with potential for flight if released, particularly since the accused is a native of West Bengal; (ii) this is the second NDPS offence (No. 218/2022, Kuttipuram). It contends that ongoing investigation and the risk of evading trial justify continued custody unless stringent conditions are imposed. The prosecution stresses the need to safeguard evidence, prevent tampering, and ensure presence for trial, arguing that bail could jeopardize prosecution given the offender’s NDPS track record and flight risk.

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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** **WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 BAIL APPL. NO. 1927 OF 2023** **CRIME NO.4/2023 OF MALAPPURAM EXCISE RANGE OFFICE, MALAPPURAM** ## **PETITIONER/ACCUSED:** **BABER ALI SEKH AGED 40 YEARS S/O. MANSUR ALI SEKH, BADSHAHI ROAD MATH PARA, BRADHMAN, WEST BENGAL, PIN - 713424** **BY ADVS. T.K.RAJESHKUMAR MANOJ V GEORGE KEERTHANA.V ANGEL MARY AJU DHANANJAY DEEPAK T.N.BINDU** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR CIVIL STATION RD, MIDILL HILL, UP HILL, MALAPPURAM, KERALA, PIN – 676505** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031** **BY SMT.T.V.NEEMA, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1927 OF 2023** **2** ## **ORDER** Dated this the 22[nd] day of March, 2023 This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure by the first accused in crime No.4/2023 of Malappuram Excise Range Office, Malappuram. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor. 4. The prosecution allegation is that on 26.01.2023, when the Excise Officials led by the Excise Circle Inspector, Manjeri, conducted vehicle checking near Govt. High School at Irumbazhi, it was found that accused Nos.1 and 2 in this crime, transported 2 kg of Ganja in an autorickshaw bearing registration No.KL-55-A 4201, against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances **BAIL APPL. NO. 1927 OF 2023** **3** Act, 1985 (hereinafter referred to as 'NDPS Act', for short). Accordingly, accused were nabbed red handedly along with the contraband. Pursuant to recovery of the contraband and the arrest of the accused, crime alleging commission of offences punishable under Sections 20(b)(ii)B and 29 of the NDPS Act was registered. 5. While pursuing regular bail to the petitioner, the learned counsel for the petitioner highlighted custody of the petitioner from 26.01.2023 onwards and also the progress of investigation. The learned counsel also offered sureties from Kerala State to execute bail bond. It is submitted further that appropriate conditions may be imposed by this Court while granting regular bail to the petitioner to secure his cooperation for investigation and trial, avoiding likelihood of flee from trial. 6. The learned Public Prosecutor opposed bail, specifically on two grounds. The first ground is that the **BAIL APPL. NO. 1927 OF 2023** **4** prosecution case is well made out, in a case involving red hand recovery of intermediate quantity of Ganja and the petitioner is a native of 'West Bangal' and therefore, if he would be released on bail, there is likelihood of flee from trial and the same would be fatal to the prosecution. Secondly, it is submitted that this is the second crime under the NDPS Act registered against the petitioner and he has involvement in crime No.218/2022 of Kuttipuram police station, involving small quantity of contraband. 7. In response to this submission, the learned counsel for the petitioner submitted that in the petition itself, involvement of the petitioner in a case under the NDPS Act, involving small quantity, was disclosed. 8. On perusal of the case diary, red hand recovery of 2 kg of Ganja from an autorickshaw bearing registration No.KL-55 A 4201, while accused Nos.1 and 2 were transported the same, could be gathered, _prima facie_ . **BAIL APPL. NO. 1927 OF 2023** **5** However, it appears that investigation has achieved much progress. At the same time, it is noted that this is the 2[nd] crime under the NDPS Act registered against the petitioner. Therefore, petitioner's continuous involvement in NDPS offences is a matter of serious concern. 9. Having noticed the progress of investigation and custody of the petitioner from 26.01.2023, the petitioner shall be released on bail by executing bond for Rs.75,000/(Rupees seventy five thousand only) by two solvent sureties from Kerala State by offering security of their property while executing the bond, by producing the relevant tax receipts. That apart, the petitioner shall produce his Identity Card issued by the Election Commission of India or Aadhaar Card, with an attested copy of the same and his contact number and also a letter from the SHO of the police station, where he has been residing permanently, with his residential details and name of parents and siblings with contact number of the SHO **BAIL APPL. NO. 1927 OF 2023** **6** before executing the bond, in order to vouch and secure his presence for trial and to avoid his flee from trial, after release on bail. Accordingly, this petition stands allowed and the petitioner is enlarged on bail on the following conditions: - i. The petitioner shall be released on bail on executing bond for Rs.75,000/- (Rupees seventy five thousand only) with two solvent sureties each, from Kerala State by offering security of their property while executing the bond, by producing the relevant tax receipts. - ii. The petitioner shall produce his Identity Cards issued by the Election Commission or Aadhaar cards with an attested copy of the same and his contact number and also a letter from the S.H.O. of the police station, where he has been residing permanently, with his residential details and name of parents and siblings with contact number of the S.H.O., before **BAIL APPL. NO. 1927 OF 2023** **7** executing the bond, in order to vouch and secure his presence for trial and to avoid his flee from trial, after release on bail. - iii. The petitioner shall not intimidate the witnesses or tamper with evidence. - iv. The petitioner shall co-operate with the investigation and shall be available for trial. He shall appear before the Investigating Officer on every Tuesday in between 9 am and 12 noon, from the date of release on bail, for a period of two months. - v. The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with this facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer. - vi. The petitioner shall surrender his passport, if any, within seven days from the date of his release, before the trial court. If he has no passport, he shall file **BAIL APPL. NO. 1927 OF 2023** **8** an affidavit in this regard on the date of execution of the bond or within three days thereafter. - vii. The petitioner shall not leave the territory of Kerala State without permission of the jurisdictional Court. - viii. The petitioner shall not involve in any other offence during the currency of bail and any such event, if informed 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