KABEER v. STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2023-02-27
Court Decision / Holding: The petition is allowed; the petitioner is enlarged on bail on complying with: (i) bond of Rs.50,000 with two solvent sureties; (ii) no intimidation of witnesses or tampering with evidence; (iii) cooperation with investigation and appearance for trial; (iv) no direct or indirect inducement to witnesses; (v) passport surrender if any; (vi) no commission of any offence during the bail period, with violation being a ground to cancel bail.
Final Disposition: Bail granted

Parties to the Case

Appellants / Petitioners

KABEER

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Sub Inspector of Police, Ponni (Ponnani) Police Station, Malappuram

Legal Representation & Advocates

Counsels for Petitioners

• Rassal Janardhanan A.
• Thareeq Anver
• K. P. Raj
• Govind G. Nair

Counsels for Respondents

• S. Sangeetha Raj, Public Prosecutor

Case Synopsis & Summary

This is a bail application under Section 439 CrPC by the first accused, Kabeer, in Crime No.546/2022 of the Ponnani Police Station, Malappuram, for an offence under Section 20(b)(ii)B of the NDPS Act. The petition (B.A. No.10459/2022) was admitted on 27 February 2023 before a Single Judge of the Kerala High Court at Ernakulam. The prosecution alleges the petitioner illegally possessed 8.025 kg of ganja at his residence for sale on 20.09.2022, in the company of accused Nos.2 and 3. The case diary and the Investigating Officer’s report were perused. The learned counsel for the petitioner contends innocence, prolonged custody since 20.08.2022, and minor antecedents, arguing for regular bail subject to conditions. The Public Prosecutor counters with the petitioner’s criminal antecedents and the likelihood of reoffending, noting that a final report has already been filed to oppose default bail, and enumerates five prior crimes across years (NDPS, IPC offences, and Abkari Act). While acknowledging the petitioner’s custody, the court also highlights the pending trial (S.C.No.1377/2022 before the Special Court, Manjeri) and the absence of any completed protracted trial. After balancing these factors, the court grants bail under stringent conditions. The order requires a bond of Rs.50,000 with two solvent sureties, prohibitions on witness intimidation, mandatory cooperation with investigation and trial appearances, no-inducement restrictions, passport surrender, and a directive that any violation may cancel bail.

Provisions of Law Cited

Section 439 of the Code of Criminal ProcedureSection 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985Section 20(b)(ii)A of the NDPS ActSection 341 IPCSection 323 IPCSection 308 IPCSection 506(ii) IPCSection 324 IPCSection 15(c) r/w 63 of the Abkari ActSection 107 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and argues that prolonged custody since 20.08.2022, with relatively minor antecedents, justifies regular bail subject to strict conditions and monitoring to ensure attendance and cooperation.

Contentions of Respondents

The State submits that the petitioner has criminal antecedents and that a final report has been filed; if released, the petitioner may repeat offences. The prosecution highlights five earlier cases spanning 2018-2019 under NDPS, IPC, and Abkari Act, underscoring the risk of flight or reoffending and the necessity to deny default bail and impose stringent bail conditions.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 27[TH] DAY OF FEBRUARY 2023/8TH PHALGUNA, 1944** ## **BAIL APPL. NO.10459 OF 2022** ## **PETITIONER/1st ACCUSED:** KABEER, AGED 45 YEARS, VALAPPIL HOUSE, MURINHAYI, PONNANI SOUTH P.O, MALAPPURAM, KERALA, PIN – 679586. BY ADVS. RASSAL JANARDHANAN A. THAREEQ ANVER K. P.R.AJAY GOVIND G. NAIR ## **RESPONDENTS/COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. 2 SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, MALAPPURAM, PIN – 679586. BY ADV.S.SANGEETHA RAJ, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No.10459 of 2022** 2 ## **O R D E R** ## **Dated, this the 27[th] February, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, and the petitioner is the 1[st] accused in crime No.546/2022 of Ponnani Police Station, Malappuram, where he alleged to have committed offence punishable under Section 20(b)(ii)B of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'NDPS Act', for short), and the petitioner seeks regular bail. **==> picture [394 x 10] intentionally omitted <==** petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant materials forming part of the Case Diary produced by the learned Public Prosecutor and the report of the Investigating Officer. 4. The prosecution allegation is that at about 8:30 p.m. on 20.09.2022, the petitioner ## **B.A. No.10459 of 2022** **==> picture [7 x 9] intentionally omitted <==** herein along with accused Nos.2 and 3 possessed, 8.025 Kg of Ganja at his residential house for the purpose of sale, against the restrictions contained in the NDPS Act. Accordingly, he was nabbed red-handedly and crime was registered alleging commission of the above offence. 5. The learned counsel for the petitioner would submit that the petitioner is innocent. According to him, the petitioner has been in custody from 20.08.2022 and the criminal antecedents reported against him are minor in nature. Therefore, considering the prolonged custody of the petitioner and filing of final report in this matter, he may be enlarged on bail on conditions. 6. Whereas, the learned Public Prosecutor would submit that the petitioner is a person, having criminal antecedents and final report already filed in time to avoid grant of default bail. The learned Public Prosecutor would submit that if the petitioner will be released on bail, 4 ## **B.A. No.10459 of 2022** he would repeat crimes and he has involvement in five crimes listed as under: 1. Ponnani Excise Range Office Cr.29/2018 U/s.20(b)(ii)A of NDPS Act. 2. Ponnani PS Cr.60/2018 U/s.341, 323, 308, 506(ii) IPC. 3. Ponnani PS Cr.299/2018 U/s.341, 324 IPC. 4. Ponnani PS Cr.511/2019 U/s.15(c) r/w 63 of Abkari Act. 5. Ponnani PS Cr.310/2018 U/s.107 Cr.P.C. 7. On perusal of the antecedents of the petitioner, it is discernible that he has involvement on NDPS crime involving small quantity and also he was nabbed for consumption of alcohol in public place. That apart, one among the crime is alleging commission of offence under Section 308 of IPC. Proceedings under Section 107 Cr.P.C. also has been initiated during 2018 to record him in the Rowdy list. Therefore, the submission made by the learned Public Prosecutor to the effect that the petitioner is a person having criminal **B.A. No.10459 of 2022** 5 antecedents and he does not have any respect in law appears to be _prima facie_ convinced. However, as a matter of fact, he had been in custody from 20.08.2022 and the trial not completed, and the matter has been pending as S.C.No.1377/2022 before the Special Court, Manjeri. The involvement of the petitioner in repeated crimes, is noted with anxiety and displeasure. 8. However, having considered his custody from 20.08.2022, he can be released on bail by imposing stringent conditions and one among the conditions is that he shall not involve or indulge in any offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted. 9. Accordingly, this petition stands allowed and the petitioner is enlarged on bail on the following conditions: _i. The 1[st] accused/petitioner shall be_ **B.A. No.10459 of 2022** 6 - _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._ - _iii. The petitioner shall co-operate with the investigation and shall be available for trial. He shall appear before the Investigating Officer on every Tuesday in between 9 a.m and 12 noon, from the date of release on bail, for a period of six weeks._ - _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, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter._ 7 ## **B.A. No.10459 of 2022** _vi.The petitioner shall not involve or indulge 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 alone shall be a reason to cancel the bail hereby granted._ Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 8 ## **B.A. No.10459 of 2022** ## **APPENDIX OF BAIL APPL. 10459/2022** ## PETITIONER'S ANNEXURES: ANNEXURE 1 THE TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.546/2022 OF THE PONNANI POLICE STATION DATED 21/08/2022. ANNEXURE 2 THE TRUE COPY OF THE OF THE FINAL REPORT IN S.C.1377/2022 DATED 26/10/2022 PENDING ON THE FILE OF THE HON'BLE ADDL. DISTRICT & SESSIONS COURT (NDPS), MANJERI. ANNEXURE3 THE ORDER OF THE HON'BLE HON'BLE ADDL. DISTRICT & SESSIONS COURT (NDPS), MANJERI IN C.M.P 1661/2022 DATED 15/11/2022.