IRSHAD N.A v. STATE OF KERALA

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 ``` ## `BAIL APPL. NO. 8829 OF 2023` ``` CRIME NO.930/2023 OF THRIKKAKARA POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` IRSHAD N.A, AGED 28 YEARS S/O.IBRAHIM, MAITHDKA HOUSE, SULYA VILLAGE, DAKSHINA KANNADA, KARNATAKA, PIN – 574239 ``` ``` BY ADVS.I.V. PRAMOD SAIRA SOURAJ P.(K/841/2019) MEGHA G.(K/004061/2023) ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.8829/2023 -:2:- Dated this the 1[st] 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 second accused in Crime No.930/2023 of Thrikkakara Police Station, Ernakulam, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 20(b) (ii) C & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested on 08.06.2023. 2. The gist of the prosecution case, is that: around 9.30 a.m., on 08.06.2023, the accused were found in possession of 24.232 Kgs. of ganja, at Vazhakkala, Kakkanad. Thus, the accused have committed the above offences. 3. Heard; Sri. I.V. Pramod, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the B.A.No.8829/2023 -:3:- learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. There is absolutely no material, even in the final report laid by the investigation agency, other than for merely stating that the petitioner was also in the scene of occurrence, to implicate the petitioner. He placed reliance on the CCTV footage to show that there was only one person, who was seen carrying the contraband into the room. He further contended that the petitioner has been languishing in jail since 08.06.2023, nearly eight months. The investigation in the case is complete, the final report has been laid and recovery has been effected. The petitioner’s continuous detention is unnecessary. The petitioner is willing to B.A.No.8829/2023 -:4:- abide by any stringent condition that may be imposed by this Court. Even assuming that the prosecution allegation is true, the contraband is just above the intermediate quantity, or rather just touched the commercial quantity mark i.e., 24.232 Kgs. of ganja. As there were two persons, the petitioner may be granted the benefit of doubt. 5. The learned Public Prosecutor vehemently opposed the application. He contended that it was the petitioner who procured the contraband article from Bangalore. The contraband is of a commercial quantity. Therefore, the rigor under Section 37 of the NDPS Act applies to the facts and circumstances of the case. If the petitioner is released on bail, he is likely to commit a similar offence. Hence, the application may be dismissed. 6. The prosecution allegation is that, the petitioner and two others were found in possession of B.A.No.8829/2023 -:5:- 24.232 Kgs. of ganja, in the house belonging to the first accused. On a meticulous scrutiny of the materials placed on record, prima-facie, I find that there was only one person that is seen as per the mahazar attached to the final report. Moreover, prima-facie I also do not find any material to substantiate that, it was the petitioner who procured the contraband article from Bangalore, as alleged by the prosecution. Indisputably, the petitioner has no criminal antecedents. The investigation in the case is complete, recovery has been effected, the final report has been laid and the case is now numbered as S.C.No.1791/2022. 7. Taking into account all the above circumstances, I am of the view that the rigour under Section 37 of the NDPS Act stands diluted, particularly because the contraband has touched the commercial quantity mark. Thus, I am inclined to enlarge the B.A.No.8829/2023 -:6:- petitioner on bail; but subject to stringent conditions. 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 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 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, B.A.No.8829/2023 -:7:- including an offence under the NDPS Act, while he is 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 effect before the court below on the date of execution of the bond; - (v) The petitioner shall not leave the territorial jurisdiction of the Sessions Division of Ernakulam District; - (vi) The petitioner shall also inform the Investigating Officer about his present address and his mobile number; - (vii)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. (viii) Applications for deletion/modification of the bail B.A.No.8829/2023 -:8:- conditions shall be moved and entertained by the court below. - (ix) 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** DST/01.02.24 //True copy// P.A. To Judge