Junaid KP v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946 BAIL APPL. NO. 3184 OF 2024 ``` ``` CRIME NO.2641/2023 OF Ernakulam North Police Station, ``` ## **`Ernakulam`** ## **`PETITIONER/ACCUSED:`** ``` JUNAID KP, AGED 25 YEARS S/O. MUHAMMED KUNJ, NAJEEDA MANZIL, KANDAKAI ROAD, KAYARALAM, MAYYIL, KANNUR DISTRICT, PIN - 670602 ``` ``` BY ADVS. K.C.ELDHO ALMAJITHA FATHIMA ``` ## **`RESPONDENT/COMPLAINAT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3184 of 2024 ## -:2:- Dated this the 6[th] day of June, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 3[rd] accused in Crime No.2641/2023 of the Ernakulam North Police Station, Ernakulam, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (‘the Act’ for short), 1985. The petitioner was arrested on 03.11.2023. 2. The crux of the prosecution case is that: on 22.10.2023, at around 17.50 hours, 78.59 grams of methamphetamine was recovered from the first accused, from the wooden alamarah in the bedroom of the first accused. During the course of the investigation, it was revealed that the contraband was B.A.No.3184 of 2024 -:3:- supplied to the first accused by the accused 2 to 4, and there were financial transactions between them. Thus, the accused have committed the above offences. 3. Heard; Sri. Eldho. K.C, the learned counsel appearing for the petitioner and Smt. Seetha.S., the learned Public Prosecutor. 4. The learned counsel for the petitioner strenuously submitted that the petitioner is totally innocent of the accusations leveled against him. There is no material to substantiate the petitioner’s involvement in the case. The only vague allegation made in the final report is that there were certain financial transactions between the accused during the period from 15.04.2023 to 01.09.2023. This by itself cannot be a ground to implicate the petitioner in the crime. The petitioner is a student who is doing his graduation. The petitioner has been in judicial custody since 03.11.2023, the investigation in the case is B.A.No.3184 of 2024 -:4:- practically complete, and the final report has already been laid. Moreover, the Court of Session Ernakulam has enlarged the fourth accused on bail as per the order dated 27.02.2024 in Crl.M.C.No.581/2024. The petitioner claims parity with the fourth accused since the fourth accused is also implicated in the very same allegations. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that there are incriminating materials to substantiate the petitioner’s involvement in the crime. There were financial transactions between the petitioner and the first accused, which are born out by the bank records. Moreover, since a commercial quantity of contraband is involved in the case, the rigour under Section 37 of the Act would apply. If the petitioner is released on bail, there is every likelihood of him committing similar B.A.No.3184 of 2024 ## -:5:- offences. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that the first accused was found in conscious possession of 78.59 grams of methamphetamine. He was arrested on the spot with the contraband article. During the course of the investigation, it was unveiled that the accused 2 to 4 are also involved in the crime because there are financial transactions between the accused 2 to 4 and the first accused during the period from 15.04.2023 to 01.09.2023. If the prosecution case is to be accepted, certainly the contraband involved in the case is of a commercial quantity, and the rigour under Section 37 of the Act will apply. 7. It is well settled by the Hon'ble Supreme Court in **Mohd. Muslim @ Hussain V. State ( NCT of Delhi)** [2023 KHC Online 6336] and this Court in **Amal E & Anr V. State of Kerala** [2023 Live Law (Ker) 329] that a financial transaction alone cannot be B.A.No.3184 of 2024 -:6:- taken as a criteria to implicate a person as an accused for an offence under the Act. 8. Admittedly, the investigation in the case is complete, and the complaint has already been laid. A reading of Annexure A2 would show that the allegation against the petitioner is that he had financial transactions with the first accused, for which he has been implicated in the crime. Going by the law laid down in **Mohd. Muslim and Amal E** ’s cases (supra), it is settled that financial transactions are not sufficient to implicate a person as an accused in the crime. Nonetheless, that is a matter to be decided at the time of trial. 9. Even though the learned counsel for the petitioner relied on Annexure A4 order passed by the Court of Session, Ernakulam, enlarging the fourth accused on bail, I am not satisfied of the reasons stated in the said order to enlarge the fourth accused on bail. B.A.No.3184 of 2024 ## -:7:- The learned Sessions Judge has not adverted to any reasonable grounds to dilute the rigour under Section 37 of the Act. Nonetheless, on an independent evaluation of the materials on record in respect of the petitioner in the case, that he has been implicted because of certain financial transactions, the petitioner is entitled to be released on bail. Therefore, I hold that the petitioner has made reasonable grounds to dilute the rigour under Section 37 of the Act, especially since he is a person without criminal antecedents, which is sufficient to satisfy the second limb of Section 37 in view of the law laid down by the Hon’ble Supreme Court in **Dheeraj Kumar Shukla v. The State of Uttar Pradesh** [2023 KHC 6545]. Hence, I am convinced and satisfied that the petitioner has made out reasonable grounds to hold that he has not committed the offence and that he is not likely to commit an offence. B.A.No.3184 of 2024 ## -:8:- 10. On an overall appreciation of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the fact that the only overt act alleged against the petitioner is the monetary transaction between the petitioner and the first accused, that the 4[th] accused has already been enlarged on bail, that the investigation in the case is complete, and that the complaint has been laid, I hold that the petitioner is 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 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 as and when required; B.A.No.3184 of 2024 -:9:- (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 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) 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. B.A.No.3184 of 2024 -:10:- (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]** . (viii) Any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. Sd/- ## **C.S.DIAS,JUDGE** mtk/06.06.24