Ibrahimkutty v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 ``` ## _`BAIL APPL. NO. 2276 OF 2022`_ ``` AGAINST THE ORDER/JUDGMENT Bail Appl. 9342/2021 OF HIGH COURT OF KERALA ``` ## Crime No.853/2021 of Angamaly police Station. ## _`PETITIONER/S:`_ ``` IBRAHIMKUTTY AGED 32 YEARS FLAT NO D183 DLF-NTH, KAKKANAD, ERNAKULAM, PIN - 682030 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. ``` ## _`RESPONDENT/S:`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR ``` ## _`OTHER PRESENT:`_ ``` P G MANU SRPP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No. 2276 of 2022 ``` ``` ..2.. ``` ## **O R D E R** **Dated this the 02[nd ] day of June, 2023** This is an application for regular bail filed by the 5[th] accused in Crime No.853/2021 of Angamaly police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary, placed by the learned Public Prosecutor. 3. This crime was registered on 06-06-2021 alleging offence under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the NDPS Act. The specific allegation is that on 05.06.2021, while the police party headed by the Sub Inspector was checking vehicles, a pick up van bearing registration No. KL 40 N 5444 driven by the first accused came the way from north to south. The vehicle was intercepted. At that time travel movements were restricted due to the pandemic and accused Nos. 1 and 2 who ``` B.A. No. 2276 of 2022 ``` **==> picture [31 x 7] intentionally omitted <==** travelled in the vehicle did not carry affidavits disclosing the purpose of travel. Growing suspicion about their movement, their body was searched in the presence of a gazetted officer and on search the first accused was found carrying a bag containing 2.189 kg. of MDMA which is commercial quantity and thus following the procedural formalities, both of them were arrested and were remanded to judicial custody on 06.06.2021. Further investigation showed involvement of other accused also in this crime. Accordingly, the petitioner got arrayed as the 5[th] accused and he was arrested on 10-06-2021. Since then he has been in judicial custody. 4. The learned counsel appearing for the petitioner would submit that nothing was recovered from the conscious possession of the petitioner and the allegation of the prosecution is that the petitioner is the person who had arranged a car bearing Registration No. KL-23-K-1434 to transport the contraband and ``` B.A. No. 2276 of 2022 ``` **==> picture [31 x 7] intentionally omitted <==** also he had given Rs.3.2 lakh for the purchase of the same to the 4th accused through his bank account. On this basis, the petitioner was nabbed and has been in custody. 5. The learned counsel appearing for the petitioner would _**2023 3 KHC 212 Fasil** v._ submit that in the decision reported in _( )_ _**State of Kerala** ,_ this court laid down certain parameters to dilute the rigour the under Section 37 of the NDPS Act and the same as under:- _“Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed_ ``` B.A. No. 2276 of 2022 ``` **==> picture [31 x 7] intentionally omitted <==** _at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”_ It is argued that the ratio ruling would apply to the facts of this case since the petitioner, who has no antecedents, has been in custody for about two years as he has been in custody from 10.06.2021. Therefore, he may be released on bail since the facts of the case are similar to that of Fasil’s case ( _supra_ ). 6. The learned Public Prosecutor vehemently opposed the grant of bail on the submission that even though the ratio of Fasil’s case (s _upra_ ) has application in this case in one way, since the petitioner has no criminal antecedents and he has been in custody for about two years, the quantity of contraband involved ``` B.A. No. 2276 of 2022 ``` **==> picture [31 x 7] intentionally omitted <==** in this crime would negate the plea for bail, since 2.018 kilograms of Methamphetamine-Hydrochloride is the contraband involved in this matter. 7. On perusal of the records as submitted by the learned counsel appearing for the petitioner, the role of the petitioner is confined to arranging a car for the purpose of transport of contraband and also entrustment of Rs.3.2 lakh in the account of the 4th accused for the purpose of purchase of this contraband. Therefore, there is no reason to hold that the petitioner is innocent, but his complicity is not on conscious possession of the contraband. 8. Since the petitioner has been in custody from 10.06.2021 and he is a person having no criminal antecedents and the trial even not started and there is no possibility to start the trial within a period of six months, applying the ratio in Fasil’s Case ( _Supra_ ) the petitioner can be enlarged on bail. Therefore, this petition stands allowed. The petitioner is ``` B.A. No. 2276 of 2022 ``` ``` ..7.. ``` ## enlarged on bail on 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 trial and shall be available for trial. iii. The petitioner shall not leave India without the permission of the jurisdictional court. 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 before the Jurisdictional Court on the date of execution of ``` B.A. No. 2276 of 2022 ``` ``` ..8.. ``` the bail bond or within ten days therefrom, with special permission of the Jurisdictional Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time. 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. It is specifically ordered that grant of bail to the petitioner/5th accused is not by itself is a reason to grant bail to the other accused in this crime and applications, if any of those nature, will be considered on its own merits, independently. ## **Sd/-** ## **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```