Haris Nizar v. State of Kerala and Another

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, ``` # **`1945`** ## **`BAIL APPL. NO. 1400 OF 2024`** ``` CRIME NO.141/2024 OF Palarivattom Police Station, ``` ## **`Ernakulam`** ``` AGAINST THE ORDER/JUDGMENT CRMC 330/2024 OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT, KOCHI ``` ## **`PETITIONER/ACCUSED:`** ``` HARIS NIZAR AGED 29 YEARS S/O. NIZAR, PUTHUVEEDU HOUSE, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM, PIN - 679339 ``` ``` BY ADVS. BIJITH S.KHAN NITHIN J.R. ROY ANTONY ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031`** - **`2 THE STATION HOUSE OFFICER PALARIVATTOM POLICE STATION ERNAKULAM DISTRICT, PIN - 682025 BY ADV SRI C S HRITHWIK – SENIOR PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1400 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1400 OF 2024 ------------------------------------------------------Dated this the 29[th] day of February, 2024** ## **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.141/2024 of the Palarivattom Police Station, Ernakulam registered against the accused for allegedly committing the offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substance Act (NDPS Act), 1985. The petitioner was arrested on 24.01.2024. 2. The essence of the prosecution case is that: on 23.01.2024 at around 23.30 hours, the accused was found in possession of 4.5 grams of MDMA, while he was residing in a hotel named Hotel Moidus Lodge ``` 3 ``` ## **`BAIL APPL. NO.1400 OF 2024`** Palarivattom. Thus, the accused has committed the above offence. 3. Heard; Sri. Bijith S. Khan the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that, petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that the Investigating Officer has not followed the statutory provisions of the Act. At any rate, the petitioner has been in judicial custody since 24.01.2024, the investigation in the case is complete, recovery has been effected and moreover, the petitioner does not have any criminal antecedents and the contraband seized is of an intermediate quantity. Hence, the petitioner may be released on bail. ``` 4 ``` ``` BAIL APPL. NO.1400 OF 2024 ``` 5. The learned Public Prosecutor opposed the application. He contended that there are incriminating materials to substantiate the involvement of the petitioner in the crime. Moreover, the investigation in the case is not complete. Nonetheless, he conceded to the fact that the contraband is of an intermediate quantity and the petitioner has no criminal antecedents. 6. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially taking into account the fact that, the contraband that was allegedly seized from the petitioner is of an intermediate quantity, that the petitioner has no criminal antecedents, the investigation in the case is practically complete, the petitioner has been in judicial custody since 24.01.2024 and that the recovery has been effected, I am of the ``` 5 ``` ## **`BAIL APPL. NO.1400 OF 2024`** definite view that the petitioner’s further detention is unnecessary. 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 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 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 ``` 6 ``` ## **`BAIL APPL. NO.1400 OF 2024`** 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; - iv. The petitioner shall surrender his passport, if before the court below at the time of - any, 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; ``` 7 ``` ## **`BAIL APPL. NO.1400 OF 2024`** 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 Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. **Sd/C.S. DIAS JUDGE** BR ``` 8 ``` ## **`BAIL APPL. NO.1400 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1400/2024`** ``` PETITIONER’S ANNEXURES Annexure A1A TRUE COPY OF THE FIR NO. 0141/2024 OF THE PALARIVATTOM POLICE STATION DATED 24.01.2024 Annexure A2A TRUE COPY OF THE ORDER IN CRL MC 330/2024 DATED 07/02/2024 OF THE HONORABLE SESSIONS COURT, ERNAKULAM ``` ## **`RESPONDENT’S ANNEXURES: NIL`**