Nazeer v. State (Bail Application)

B.A.No.4480/23 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945 BAIL APPL. NO. 4480 OF 2023** **PETITIONER/ACCUSED NO.3:** **NAZEER, AGED 42 YEARS, THOTTUCHIRA HOUSE, MANNANCHERRY WARD NO.10, MANNANCHERRY, ALAPPUZHA, PIN – 688 521.** **BY ADVS. SAIJO HASSAN AATHIRA SUNNY SARITHA K. RAJALAKSHMI R. SRUTHY K K P.VIJAYA BHANU (SR.)(K/421/1984)** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031.** **BY SMT.SEETHA S, SR. PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.4480/23 2 ## **ORDER** This is an application filed u/s 439 of the Code of Criminal Procedure seeking regular bail. 2. Petitioner is the accused in Crime No.48 of 2023 of Punnapra Police Station. The offences alleged against the petitioner are under Sections 22(c) and 29(1) of the NDPS Act. 3. The prosecution case is that, on 12.01.2023 at about 9.30 PM, near to Panayakulangara junction, the 1[st] accused was found possessing 0.635 grams of MDMA while travelling in his scooter bearing Reg.No.KL-04/Z 1457. Later on the basis of his confession statement, a search was conducted in the house of the 2[nd] accused and thereupon 9.70 grams of MDMA was recovered. On further investigation on the basis of the confession statement, the petitioner was implicated as the 3[rd] accused on the ground that it was the petitioner who sold the contraband article to the 2[nd] accused, who in turn has sold the same to the 1[st] accused. Accordingly, the petitioner was arrested on 13.01.2023. Since then he has been under judicial detention. This application for regular bail is submitted in such circumstances. B.A.No.4480/23 3 4. Heard Sri.P.Vijayabhanu, learned Senior counsel for the petitioner and Smt.Seetha S., learned Public Prosecutor for the State. 5. The learned Senior counsel would contended that there are absolutely no material indicating the role of the petitioner herein. According to him he was implicated on the basis of the confession statement of the other accused, which is not admissible in evidence in the light of the decision rendered by the Honourable Supreme Court in **Tofan Singh v. State of Tamil Nadu [(2020)** **5 KLT Online SC 1042 SC].** It is further pointed out that more than 200 days have elapsed since the date of arrest and there is no purpose in keeping the petitioner under detention any longer. Final report in this case is also submitted. 6. The learned Public Prosecutor on the other hand opposes the said application by pointing out that there are ample materials indicating the role of the petitioner. It is pointed out that, besides the confession statement, there are Call Data Records showing that the petitioner and the other accused were in regular contact. It is further pointed out that, the petitioner used to go to Bangalore for the purpose of collecting the contraband B.A.No.4480/23 4 article and supply the same to the other persons. It is also alleged that for the said purpose the petitioner used some other SIM cards and ID of some other persons. 7. It was further submitted that the petitioner is a person who is involved in two other cases. Details of the same is given below: “1.Alappuzha South P.S.Cr.28/2004 U/s.395, 427, 452, 506(1) IPC. 2. Alappuzha North P.S. Cr.1272/2012 U/s.279 IPC, 120(c) KP Act.” Dismissal of the application is sought in such circumstances. 8. I have gone through the records. As rightly pointed out by the learned counsel for the petitioner, the recovery was effected from accused Nos.1 and 2. It is seen from the records that even though a search was conducted in the residence of the petitioner, nothing could be recovered and no incriminating materials could be collected. Only allegation based on which the petitioner implicated was that he used to regularly contact the other accused persons. Call Data Records indicating that the petitioner used to go to Bangalore was also relied on. However, there are absolutely no evidence regarding the monetary B.A.No.4480/23 5 transactions between the parties. The regular contact between the persons by itself cannot be treated as a ground for implicating the petitioner, in the absence of any other evidence supporting the same. Even though the learned Public Prosecutor pointed out that the petitioner is involved in two other cases, none of them are related to offence under the provisions of NDPS Act. In **State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta [2022(1) KLT 552 (SC)],** it was observed by the Honourable Supreme Court after referring to **Tofan Sing’s case (** _**supra**_ **)** a person cannot be implicated as an accused merely on the basis of Call Data Records indicating the regular contact with other persons. Inadmissibility of the confession statement was also referred to in the said decision. Now it is seen from the records that the petitioner has been under judicial custody since 13.01.2023 and more than seven months have elapsed since the date of arrest. Investigation in this case is already over. In such circumstances, as the materials reveals a shadow of doubt as to the involvement of the petitioner and since he has not involved in any other offence under the provisions of NDPS Act, I am satisfied about the fulfillment of the dual conditions contemplated under Section 37 of B.A.No.4480/23 6 the NDPS Act. Therefore, I do not find any necessity of further incarceration of the petitioner . 9. In such circumstances, this bail application is allowed and the petitioner is directed to be released on bail subject to following conditions: (i) The petitioner shall be released on bail on executing a bond for Rs. 1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court. (ii) The petitioner shall appear before the trial court as and when required. (iii) The petitioner shall also appear before the investigating officer as and when required by him. (iv) The petitioner shall not commit any offence of similar nature while on bail. (v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. (vii) The petitioner shall not leave India without the permission of the trial Court. B.A.No.4480/23 7 In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** DG/24.8.23 B.A.No.4480/23 8 ## **APPENDIX OF BAIL APPL. 4480/2023** ## **PETITIONER ANNEXURES** **Annexure 1 THE CERTIFIED COPY OF THE ORDER DATED 06.05.2023 IN CRL.M.P.NO. 1723/2023 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE 1.** **Annexure A2 TRUE CERTIFIED COPY OF THE ORDER PERTAINING TO CRL. M.P. NO. 2450/2023 GIVEN BY SESSIONS JUDGE OF ALAPPUZHA DATED 17.06.2023**