Nasurthav and Nabi Hussain v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-05-22
Court Decision / Holding: The application is allowed; the petitioners are to be released on bail on a bond of Rs.1,00,000 with two solvent sureties for similar sums, subject to conditions (appearance before IO on Saturdays, non-inducement, no commission of offences, passport surrender or affidavit, providing present and permanent addresses and mobile numbers, not leaving the territorial jurisdiction without permission, and potential cancellation upon violation). The order also cites Sushila Aggarwal v. State (NCT of Delhi) and another for the principle allowing certain recoveries and actions during bail.
Final Disposition: Bail Granted

Parties to the Case

Appellants / Petitioners

Nasurthav
Nabi Hussain

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• P. A. Mohammed Aslam
• E. B. Thajuddeen
• Irshad V. P.
• Midhun Mohan
• Sarath Sasi
• Arthur B. George
• Nimisha M.G.
• Aneeta B. George

Counsels for Respondents

• C. S. Hrithwik

Case Synopsis & Summary

This is a bail application under Section 439 CrPC before the High Court of Kerala (Ernakulam) by Nasurthav and Nabi Hussain, accused in Crime No.16/2024 of the Excise Enforcement and Anti-Narcotic Special Squad, Ernakulam, under Sections 20(b)(ii)(B), 21(b), 27(b) and 29 of the NDPS Act. The petitioners were arrested on 22.03.2024 after recovery of 1.252 kg of ganja and 8.384 g of heroin. The applicants contend innocence, lack of material linking them to the crime, and have been in judicial custody for about 60 days with the investigation nearly complete and final report not yet filed; they argue entitlement to statutory bail and, given the intermediate quantity of contraband, that Section 37 rigidity should not apply. The State represented by the Public Prosecutor opposes bail, highlighting ongoing investigation and flight risk since the petitioners are natives of Assam with no roots in Kerala, though conceding there are no criminal antecedents. The Court, considering that the contraband is of intermediate quantity, the 60-day custody period, and near completion of investigation with recovery effected, finds no necessity for further detention and grants bail subject to a Rs.1,00,000 bond with two sureties and conditions restricting appearance, non-inducement, non-commission of offences, passport surrender or affidavit, address details, territorial limits, and potential cancellation for violation. The order cites a Supreme Court principle in Sushila Aggarwal and another to permit certain actions during bail.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Sections 20(b)(ii)(B), 21(b), 27(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioners contended that the accused are innocent and there is no material establishing their involvement; they have been in judicial custody for about 60 days and the investigation is nearly complete with the final report not yet filed; on these grounds they seek statutory bail and submit that the contraband is of intermediate quantity, so the rigour of Section 37 should not apply. They emphasize lack of roots in Kerala and no prior criminal antecedents, arguing for release under appropriate bail conditions.

Contentions of Respondents

The State opposed bail, noting that the investigation is ongoing and release could lead to re-offending; it highlighted no immediate ties to Kerala and potential flight risk, though it conceded no criminal antecedents for the petitioners and acknowledged the intermediate quantity of contraband.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited as authority for the permissible actions during bail and related procedural considerations (recoveries during bail) as laid down by the Supreme Court.

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** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946** **BAIL APPL. NO. 4007 OF 2024** **CRIME NO.16/2024 OF Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, Ernakulam** ## **PETITIONER/S:** **1 NASURTHAV, AGED 30 YEARS S/O. PUNATHAV, SUNARISAPON, NO 2 KEKKURIPAMUVA VILLEGE, DHAKWAGHANA THALUK, LAKHIPOOR DISTRICT, ASSAM STATE, PIN - 787055 2 NABI HUSSAIN , AGED 23 YEARS S/O. RANJAN ALI, KALAMGAPAR, KASOYGURI VILLAGE, NAGON THALUK, NAGON DISTRICT, ASSAM STATE, PIN - 787055** **BY ADVS. P.A.MOHAMMED ASLAM E.B.THAJUDDEEN IRSHAD V.P. MIDHUN MOHAN SARATH SASI ARTHUR B. GEORGE NIMISHA M.G. ANEETA B. GEORGE** ## **RESPONDENT/S:** **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 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4007 OF 2024 2 Dated this the 22[nd] day of May, 2024 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.16/2024 of the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam registered against the accused for allegedly committing the offences punishable under Sections 20(b)(ii)(B), 21(b), 27(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioners were arrested on 22.03.2024. 2. The essence of the prosecution case is that: on 22.03.2024 at around 12.45 hours the accused were found in possession of 1.252 kilograms of ganja and 8.384 grams of heroine. The accused were arrested from the spot with the contraband articles. Thus, the accused have committed the above offences. 3. Heard; Sri.Mohammed Aslam P.A., the learned BAIL APPL. NO. 4007 OF 2024 3 counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. There is no material to show their involvement in the crime. Moreover, the petitioners have been in judicial custody for the last 60 days, the investigation in the case is not complete and the final report has not been laid. Therefore, the petitioners are entitled to statutory bail also. In addition to the same, the contrabands involved in the case are of intermediate quantity. Therefore, the rigour under Section 37 of the Act will not apply. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is in progress. If the petitioners are released on bail, there is every likelihood of them committing similar offences. He further submitted that the petitioners are the natives of BAIL APPL. NO. 4007 OF 2024 4 the State of Assam. Since, the petitioners do not have roots in the State of Kerala, if they are released on bail, there is every likelihood of them fleeing from justice. Hence, the application may be dismissed. However, he did not dispute the fact that the contrabands involved in the case are of intermediate quantity and the petitioners do not have criminal antecedents. 6. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that the contrabands involved in the case are of intermediate quantity, that the petitioners have been in judicial custody for the last 60 days, that the investigation in the case is practically complete and recovery has been effected, I am of the view that the petitioners' further detention is unnecessary. Hence, I am inclined to allow the application. BAIL APPL. NO. 4007 OF 2024 5 In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is filed, whichever is earlier. They shall also appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m. till the conclusion of the trial in Crime No.16/2024. (ii) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; BAIL APPL. NO. 4007 OF 2024 6 (iii) The petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passport, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file affidavits to the effect before the court below on the date of execution of the bond; (v) The petitioners shall furnish their present and permanent addresses and mobile numbers to the Investigating Officer and also to the jurisdictional court. (vi) The petitioners shall not leave the territorial jurisdiction of the Court of Session, Ernakulam without the previous permission of the Court. (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. BAIL APPL. NO. 4007 OF 2024 7 (viii) Applications for deletion/modification of the bail conditions shall be filed and entertained before 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 petitioners even while the petitioners are 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]. **C.S.DIAS,JUDGE** rkc/22.05.24 BAIL APPL. NO. 4007 OF 2024 8 ## **APPENDIX OF BAIL APPL. 4007/2024** ## **PETITIONER ANNEXURES** **Annexure A1** **TRUE COPY OF THE COMMON ORDER IN CRL.M.C 1257 OF 2024 AND CRL.M.C NO 1258 OF 2024 DATED 30/4/2024**