Hashir M.H. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** **BAIL APPL. NO. 1090 OF 2024** **CRIME NO.1544/2022 OF Ernakulam South Police Station, Ernakulam** **AGAINST THE ORDER/JUDGMENT DATED IN SC NO.500 OF 2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM / IV ADDITIONAL MACT, ERNAKULAM** **PETITIONER/S:** **HASHIR M.H,AGED 26 YEARS S/O. LATE HABEEB M.H, MUTHIRAKKATHARAMEL HOUSE, KANDANKULANGARA, ELATHUR VILLAGE, PUTHIYANGADI POST, KOZHIKKODE DISTRICT, PIN - 673303** **BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH** ## **RESPONDENT/S:** **1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 STATION HOUSE OFFICER,ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM DISTRICT, PIN - 682015** **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **PP SMT SHYNIMOLE V O** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 1090 OF 2024 2 ## **O R D E R** This application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 3[rd] accused in Crime No.1544/2022 of the Ernakulam Town South Police Station, Ernakulam, registered against the accused (three in number), for allegedly committing the offences punishable under Secs.22(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'Act'). 2. The essence of the prosecution case is that: the accused 1 to 3 had hatched a criminal conspiracy and in furtherance of their common intention had purchased methamphetamine hydrocloride from Bangalore and accused 1 to 3 brought the contraband in a car and the 1[st] accused was found in possession of 12.79 grams, the 2[nd] accused was found in possession of 24.16 grams and the 3[rd] accused was found in possession of 15.13 grams in room No. 304, 3[rd] floor of the Capris Residency. Accordingly, the accused had a total quantity of 52.08 grams of methamphetamine. Hence, the accused have BAIL APPL. NO. 1090 OF 2024 3 committed the above offences. 3. Heard; Sri.P.Mohammed Sabah, the learned counsel appearing for the petitioner and Smt.Shinymol, the learned Public Prosecutor. 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. A reading of the final report would substantiate that there is violation of Section 50 of the Act. Moreover, taking into account the violation of Section 50 of the Act, the learned Sessions Judge, Ernakulam, before whom the trial is pending, by order dated 02.03.2024 in Crl.M.P.No.815/2024 in S.C.No.500/2023 has enlarged the 2[nd] accused on bail. Taking note of the above aspect, this Court, by order dated 06.03.2024, in B.A.No.983/2024 has also enlarged the 1[st] accused on bail. The petitioner is at par with the accused 1 and 2. Therefore, the petitioner is also entitled to a similar order in view of the findings of the learned Sessions Judge, Ernakulam and this Court. BAIL APPL. NO. 1090 OF 2024 4 Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the contraband involved in the case is of a commercial quantity. Therefore, the rigour under Section 37 of the Act applies to the case. Moreover, if the petitioner is let off on bail at this stage, he may tamper with the evidence, especially when the trial is in progress. Hence, the application may be dismissed. 6. The Court of Session, Ernakulam, before whom the trial in S.C.No.500/2023 is pending consideration, after perusal of the entire materials on record in the order dated 02.03.2024 in Crl.M.P.No.815/2024 has held as follows: “6. On perusal of the facts it can be seen that the accusation made against the petitioner is prima facie well founded. However, the petitioner is in judicial custody from 21.12.2022 onwards and trial also commenced in this case. The learned counsel for the petitioner has pointed out the violation of section 50 of the NDPS Act. From the evidence it can be seen that the right of body search has not been conveyed to the accused separately and also the contrabands were weighed including polythene covers. The petitioner is in custody for the last more than 14 months and I am of the opinion that the continued detention of the petitioner is not required for any purpose. In the said circumstances, the petitioner is entitled to be released on bail on the following conditions”. BAIL APPL. NO. 1090 OF 2024 5 7. Taking note of the findings of the learned Sessions Judge, Ernakulam, when B.A.No.983/2024 filed by the 1[st] accused came up for consideration before this Court, another learned Single Judge of this Court, observed as follows: “3. The trial of the case had started, and CW 6, 9 and 10 were examined as PW 1, 2 and 3. After the evidence of CW1 as PW4, the trial court granted bail to the second accuse din Crl.M.P.No.815/2024 finding merit in the contention of the petitioner therein that there is a violation of Section 50 of the NDPS Act as the right of body search has not been conveyed to the accused separately and that the contraband was weighed, including the polythene covers. It was also found that the petitioner therein was in custody for more than 14 months. The petitioner herein was also arrested on 21.12.2022”. ## 8. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially the orders of the learned Sessions Judge and this Court in Crl.M.P.No.815/2014 in S.C.No.500/2023 and B.A.No.983/2023 respectively, I am of the definite view that the petitioner is also entitled to be released on bail. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a BAIL APPL. NO. 1090 OF 2024 6 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 alternate Saturdays between 9 a.m. and 11 a.m for a period of three 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 her 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 they are on bail; (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 BAIL APPL. NO. 1090 OF 2024 7 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. (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 of Delhi and another [2020 (1) KHC 663]** . Sd/- **C.S.DIAS,JUDGE** Rkc/07.03.24 BAIL APPL. NO. 1090 OF 2024 8 ## **APPENDIX OF BAIL APPL. 1090/2024** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE COPY OF THE FIR IN CRIME NO. 1544 OF 2022 OF ERNAKULAM TOWN SOUTH POLICE STATION** **Annexure 2 TRUE COPY OF THE ORDER DATED 01.12.2023 IN B.A.NO.10050/2023 PASSED BY THIS HONOURABLE COURT Annexure 3 TRUE COPY OF THE DEPOSITION OF PW4 DATED 11.01.2024 IN S.C NO. 500/2024 ON THE FILE OF THE VIIITH ADDITIONAL SESSIONS COURT, ERNAKULAM** **Annexure 4 TRUE COPY OF THE ORDER DATED 28.11.2023 IN B.A. NO. 7561/2023 PASSED THIS HONOURABLE COURT**