Bail Application No. 4711 of 2024 (Muhammed Siraj v. State)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 19[TH] DAY OF JULY 2024 / 28TH ASHADHA, 1946 ``` ``` BAIL APPL. NO. 4711 OF 2024 ``` ``` CRIME NO.250/2023 OF KASARAGOD POLICE STATION, KASARGOD ``` ## **`PETITIONER/2ND ACCUSED:`** ``` MUHAMMED SIRAJ, AGED 30 YEARS S/O ABOOBACKER. T, NHANIKKADU OZHINHAVALAPP P.O,KANHANGAD VILLAGE, KASARAGOD, PIN - 671314 BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM SMT.P.ARDRA MENON SRI.ALFIN NADARSHAW SMT.ANJANA V. ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2THE STATION HOUSE OFFICER, KASARAGOD POLICE STATION, KASARAGOD, PIN - 671121 ``` ## **`BY SR.PP.SMT.SEETHA S.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.4711 of 2024 ``` ``` 2 ``` ## **ORDER** ## **Dated this the 19[th] day of July, 2024** This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973 by the 2[nd] accused in Crime No.250 of 2023 of the Kasaragod Police Station, Kasaragod registered against the accused (two in number) for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner was arrested on 25.03.2023. 2. The gist of the prosecution case is that: on 25.03.2023, at around 12 noon, while the Sub Inspector of Police, Kasaragod and party were conducting patrolling duty, they found accused 1 and ``` B.A.No.4711 of 2024 ``` ``` 3 ``` 2 coming out from the railway station. On inspection of the shoulder bag of the 1[st] accused, they seized 100 gms of MDMA from the said bag. The accused 1 and 2 have transported commercial quantity of contraband in violation of the provisions of the Act. Thus, the accused have committed the above offences. 3. Heard; Sri.Rahul Sasi, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. Subsequent to the passing of Annexure A4 order by this Court, the investigation has been completed and final report has been laid. The petitioner has been in judicial custody since 25.03.2023. There is no likelihood of the trial being completed in the near future. Therefore, the ``` B.A.No.4711 of 2024 ``` ``` 4 ``` petitioner is entitled to be enlarged on bail as per the law laid down by the Hon’ble Supreme Court in **Shince Babu v. State of Kerala** [2024 KHC OnLine 8084]. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner and the 1[st] accused were found in conscious possession of 100 grams of MDMA which is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the facts of the case. Even at the time of passing of Annexure A4 order, the final report was laid. It is taking into account the rigour under Section 37 of the Act, this Court dismissed the petitioner’s earlier application for bail. There are incriminating materials to substantiate that the petitioner was travelling along with the 1[st] accused on a joint train ticket in the same train, which again establishes their ``` B.A.No.4711 of 2024 ``` ``` 5 ``` common intention and is sufficient to attract Section 29 of the Act. The ratio in **Shince Babu** ’s case is not applicable to the case on hand, since, the petitioner has been in judicial custody only from 25.03.2023. The application is meritless and it is only to be dismissed. 6. The prosecution case is that, the petitioner and the 1[st] accused had travelled on the same train on a joint train ticket and came out together from the Kasargod Railway Station. It was then that the Detecting Officer intercepted them and conducted a body search, and seized 100gms of MDMA from the shoulder bag of the 1[st] accused. The accused 1 and 2 have conspired and procured the contraband. 7. By Annexure A4 order, this Court had considered all the contentions and dismissed the petitioner’s earlier application on the finding that he ``` B.A.No.4711 of 2024 ``` ``` 6 ``` had failed to dilute the rigour under Section 37 of the Act. 8. The learned counsel for the petitioner relied on the decision in **Shince Babu’s** case and contended that since there is no likelihood of the trial commencing in the near future, the petitioner is entitled to be released on bail. 9. In **Shince Babu** ’s case, the petitioner therein was in custody from 11.04.2022. It was considering that the petitioner therein was in judicial custody for two years and there was no likelihood of the trial commencing, the Hon’ble Supreme Court enlarged the petitioner therein on bail. 10. This Court in **Jaseer S. M. v. State of Kerala** [2024 (1) KHC 269], after referring to all the earlier decisions of the Hon’ble Supreme Court, especially the law laid down in decisions **State of** ``` B.A.No.4711 of 2024 ``` ``` 7 ``` **Kerala and others vs. Rajesh and others** [2020 (1) KHC 557], has held that, merely because an accused is under judicial custody for a particular period of time, the same is not a ground to enlarge an accused on bail in view of the rigour under Section 37 of the Act. 11. Nonetheless, recently, the Hon’ble Supreme Court in **Ankur Chaudhary v. State of Madhya Pradesh** [2024 KHC 8248] has held that if an accused is in judicial custody for more than two years and the trial in the case has not commenced, then the fundamental right of the accused, guaranteed under Article 21 of the Constitution of India, would override the statutory embargo under Section 37(1)(b) of the Act. 12. In the case on hand, undisputedly, the petitioner has been in judicial custody from ``` 8 ``` ``` B.A.No.4711 of 2024 ``` 25.03.2023. Therefore, it is premature for the petitioner to aspire to get the benefit of the decisions in **Ankur Chaudhary** and **Shince Babu’s** cases. I do not find any change of circumstances, subsequent to the passing of Annexure A4 order, to enlarge the petitioner on bail. The application is meritless and only deserves to be dismissed. Consequently, the application is dismissed. Sd/- **C.S.DIAS** **JUDGE** NAB