High Court of KeralaSingle Judge2024-02-08Bail granted; case disposed.

Mohammed Farshad v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 11606 OF 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-02-08
Court Decision / Holding: The bail application is allowed; the petitioner Mohammed Farshad is ordered to be released on bail on execution of a bond for Rs.1,00,000 with two solvent sureties for the like sum, subject to conditions: (i) appearance before the Investigating Officer on Saturdays for three months or till final report; (ii) no inducement or tampering with witnesses; (iii) no commission of any offence while on bail; (iv) surrender of passport; (v) power to cancel bail for violation; (vi) modification/deletion of bail conditions by the court below; (vii) Investigating Officer may pursue recoveries as necessary in accordance with law and as laid down by Sushila Aggarwal.
Final Disposition: Bail granted; case disposed.

Parties to the Case

Appellants / Petitioners

Mohammed Farshad

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Adithya Rajeev
• Adv. S. Parvathi

Counsels for Respondents

• Sr PP Neema T. V.

Case Synopsis & Summary

This is a Kerala High Court bail application under Section 439 CrPC by Mohammed Farshad, first accused in Crime No. 921/2023, Kozhikode Town Police Station, NDPS Act offences. The state accuses three accused of possessing 29.285 kg of ganja, seized from a pickup van on Beach Road, Kozhikode, around 11:30 am on 16 September 2023, allegedly procured from Odisha for sale. The petitioner challenges the indictment, asserting he was merely a passenger and not involved in the illicit enterprise; he has been in judicial custody since 16.09.2023, and the investigation is largely complete with the contraband already recovered. The case cites that a similar order in BA 538/2024 granted bail to the second accused, suggesting the contraband corresponds to an intermediate quantity, not a clear commercial quantity. The prosecution contends there is a common intention to procure the contraband from outside the state and that the contraband was intended for sale; Section 37 NDPS Act would then be applicable to justify denial of bail. The court ultimately exercises its discretion to grant bail with stringent conditions, noting the near-commercial quantity, substance of the investigation, and the absence of antecedents, limited to the balance of convenience and public interest, and references Sushila Aggarwal v. State (NCT of Delhi) to justify that police recoveries may be made while on bail.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973NDPS Act, Sections 20(b)(ii)(C) and 27(A) read with Section 29NDPS Act, Section 37

Legal Doctrines & Maxims

Sushila Aggarwal v. State (NCT of Delhi) and another, 2020 (1) KHC 663

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he is innocent and merely a passenger; he was not part of any conspiracy to procure the contraband and does not have knowledge of its illegal nature. He has been in judicial custody since 16.09.2023, and the investigation is almost complete, with the recovery already effected, and no prior criminal record. The total quantity seized is 29.285 kg of ganja; however, this was seized from the vehicle and involved two other accused; the petitioner asserts that it cannot be characterised as a commercial quantity solely on the basis of the recovery in the same vehicle; in a related matter (BA 538/2024) the second accused has been enlarged on bail, suggesting that the contraband is of intermediate quantity. Therefore, the rigour of Section 37 of the NDPS Act stands diluted; it would be appropriate to grant bail on conditions to ensure cooperation with the investigation. The counsel cites that bail should be the rule and not the exception, particularly when the accused has no antecedents. The court should exercise discretion to grant bail while ensuring severe conditions, as per the Supreme Court’s direction in Sushila Aggarwal.

Contentions of Respondents

The contraband was seized from the vehicle in which the accused Nos.1 & 2 were travelling and was close to a commercial quantity; the accused likely conspired to procure contraband from outside the State, for sale. Consequently, there is a common intention to commit NDPS offences, and the rigour under Section 37 NDPS Act applies; bail should therefore be denied. The investigation is not shown to be complete to a degree that would justify bail under stringent conditions while preserving the possibility of interference or ongoing trafficking. The prosecution emphasizes that the contraband was seized on a public road and intended for distribution, which warrants continued custody and stringent scrutiny under the NDPS Act."},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited to justify that recoveries may be effected by the Investigating Officer while the accused is on bail, aligning with Supreme Court guidance.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 11606 OF 2023 ``` ``` CRIME NO.921/2023 OF KOZHIKODE TOWN POLICE STATION, KOZHIKODE ``` ``` PETITIONER/1ST ACCUSED: ``` ``` MOHAMMED FARSHAD, AGED 21 YEARS S/O SHAHUL HAMEED, THAYAMANGALAM PARAMBA, AREEKAD, NALLALAM P.O, KOZHIKODE DISTRICT, PIN – 673027 ``` ``` BY ADVS.ADITHYA RAJEEV S.PARVATHI ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.11606/2023 -:2:- Dated this the 8[th] 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 first accused in Crime No.921/2023 of the Kozhikode Town Police Station, Kozhikode, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 20(b)(ii)(C) and 27(A) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested on 16.09.2023. 2. The essence of the prosecution case is that; on 16.09.2023 at around 11.30 a.m, the accused Nos.1 & 2 were found in conscious possession of 29.285 Kgs. of ganja which was being transported in a pick-up van bearing registration No.KL-10-BF-5783, through the Beach Road, Kozhikode. The accused were B.A.No.11606/2023 -:3:- arrested with the contraband. It is learnt that the contraband was procured from the third accused from the State of Odissa. Thus, the accused have committed the above offences. 3. Heard Sri. Adithya Rajeev, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner argued that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The petitioner was only a passenger in the vehicle and cannot be alleged to have committed any offence under the NDPS Act. At any rate, the petitioner has been in judicial custody since 16.09.2023, which is more than 144 days. The investigation in the case is practically complete, and the recovery has been effected. The petitioner has no criminal antecedents. B.A.No.11606/2023 -:4:- Since the contraband was allegedly seized from the accused Nos.1 & 2, it cannot be treated as a commercial quantity. Moreover, by order in B.A.No.538 of 2024, this Court has enlarged the second accused on bail. As there are two accused it can only be inferred that the contraband is of an intermediate quantity. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. He contended that Sections 27 and 29 have been incorporated because the petitioners had a common intention to procure the contraband article from outside the State. The contraband was seized from the vehicle and was meant for sale. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts and circumstances of the case. Hence, the application may be dismissed. 6. The prosecution case is that 29.285 Kgs. of B.A.No.11606/2023 -:5:- ganja was seized from the pickup van in which the accused Nos. 1 & 2 were travelling. 7. On an anxious consideration to the facts, the materials placed on record, particularly taking note of the fact that the contraband article is 29.285 Kgs. of ganja, which is just touching the commercial quantity as contemplated under the Schedule of the NDPS Act, and was seized from the vehicle in which the accused Nos. 1 & 2 were travelling, that the petitioner has been in judicial custody since 16.09.2023, that the petitioner has no criminal antecedents of committing a similar offence, that the second accused has been enlarged on bail by this Court, that the investigation in the case is practically complete and that the recovery has been effected, I am of the definite view that there are reasonable grounds to believe that the petitioner has not committed the offences and he is not likely to commit a similar offence and, therefore, the rigour B.A.No.11606/2023 -:6:- under Section 37 of the NDPS Act stands diluted. Hence, I am inclined to allow the bail application, 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; B.A.No.11606/2023 -:7:- - (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. - (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 B.A.No.11606/2023 -:8:- 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/08.02.24 //True copy// P.A. To Judge