High Court of KeralaSingle Judge2024-05-27Bail Granted to the petitioner on conditions as...

NIDHIN v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 2176 OF 2024

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-05-27
Court Decision / Holding: The application is allowed; bail granted to the petitioner NIDHIN on a bond of Rs.1,00,000 with two solvent sureties for like sum, subject to conditions: (i) appearance before the Investigating Officer as required; (ii) not induce or threaten witnesses or tamper with evidence; (iii) not commit any offence while on bail; (iv) surrender or file an affidavit regarding passport; (v) court may cancel bail on violation of conditions; (vi) applications for modification/deletion of bail conditions to be entertained by the court below; (vii) Investigating Officer may continue investigations and take recoveries if needed; (viii) observations are limited to the motion and do not reflect merits of the case.
Final Disposition: Bail Granted to the petitioner on conditions as stated above (release on bail).

Parties to the Case

Appellants / Petitioners

NIDHIN

Respondents

State of Kerala, represented by Public Prosecutor
The Station House Officer, Harippad Police Station, Alappuzha

Legal Representation & Advocates

Counsels for Petitioners

• B. Pramod
• Biju Vigneswar
• Athul M.V.

Counsels for Respondents

• Smt Neema T.V. (Public Prosecutor)

Case Synopsis & Summary

This is a bail application under Section 439 CrPC filed by the 13th accused in Crime No.731/2021 of Harippad Police Station, Alappuzha, under the NDPS Act (offences under sections 8A(c), 22(c) and 29, 1985). The petitioner was arrested on 24.02.2024. The prosecution alleges that MDMA was procured from the 11th accused in Bangalore and bartered through a retail sale at a hotel premises; 52.410 grams of MDMA were seized from co-accused, and the petitioner allegedly paid Rs.38,000 to the 9th accused for 30 grams. The petitioner claims innocence and argues that the only incriminating material is a financial transaction; no contraband was seized from him; he has been in custody since 24.02.2024 and the investigation has nearly been completed with a final report filed. He points to parity with the 12th accused who was enlarged on bail and asserts no prior criminal record. The State contends that several accused are absconding, a commercial quantity is involved, and the rigour under Section 37 of the NDPS Act should apply. The court relies on Mohd. Muslim @ Hussain v. State (NCT of Delhi), Amal E & Anr v. State of Kerala, and Dheeraj Kumar Shukla v. State of Uttar Pradesh to hold that financial transactions alone cannot trigger Section 37. The application is allowed; bail granted on a bond of Rs.1,00,000 with two sureties, and standard conditions, including appearance, non-interference, no tampering with evidence, surrender of passport, etc., with the safety of the investigation preserved. Observation limited to motion, not merits.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Section 8A(c) of the NDPS Act, 1985Section 22(c) of the NDPS Act, 1985Section 29 of the NDPS Act, 1985Section 37 of the NDPS Act, 1985

Legal Doctrines & Maxims

Financial transaction alone cannot attract the rigour under Section 37 of the NDPS Act
Twin conditions contemplated under Section 37 of the NDPS Act
Sushila Aggarwal bail principles (cited for guidelines on bail conditions)
Dheeraj Kumar Shukla v. State of Uttar Pradesh (ratio cited)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence, with no material linking him to the alleged MDMA purchase. He argues that the sole incriminating material is the monetary transaction (Rs.38,000 paid to the 9th accused) and that investigation is nearly complete with final report filed. The petitioner points to parity with the 12th accused who was enlarged on bail and asserts no criminal antecedents. Relying on Mohd. Muslim @ Hussain v. State (NCT of Delhi) and Amal E & Anr v. State of Kerala, he submits that financial transactions alone cannot attract the rigour of Section 37 and that bail should be granted, balancing liberty with investigation. He notes the absence of contraband in his possession and requests bail on similar terms as others who have been granted relief.

Contentions of Respondents

The State opposes bail, arguing that several co-accused remain absconding and that the case involves a commercial quantity; there were transfers of Rs.38,000 via Google Pay to the 9th accused, with the petitioner allegedly receiving 30 grams of MDMA, creating a factual basis for serious offence and potential interference with witnesses. It is contended that Section 37 NDPS rigour should apply and that releasing the petitioner could impede the investigation and recovery. The State emphasizes that the accused had involvement in a drug network and that the final report has been laid, justifying stringent bail denial or conditional release.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Mohd. Muslim @ Hussain v. State (NCT of Delhi)	[2023 KHC Online 6336]	Positive	Supports proposition that financial transaction alone cannot attract Section 37 NDPS bail rigour.
Amal E & Anr v State of Kerala	[2023 Live Law (Ker) 329]	Positive	Affirms that financial transaction by itself does not justify Section 37 rigidity.
Dheeraj Kumar Shukla v. State of Uttar Pradesh	[2023 KHC 6545]	Positive	Cited for parity and ratio supporting bail where there are no criminal antecedents.
Sushila Aggarwal v. State (NCT of Delhi) and another	[2020 (1) KHC 663]	Mentioned Only	Cited for bail guidelines; used to frame non-merits-specific bail conditions.

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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 ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 BAIL APPL. NO. 2176 OF 2024 ``` ``` CRIME NO.731/2021 OF HARIPPAD POLICE STATION, ALAPPUZHA AGAINST THE ORDER DATED IN SC NO.862 OF 2023 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA ``` ## **`PETITIONER/ACCUSED 13:`** ``` NIDHIN, AGED 29 YEARS S/O. RAMACHANDRAN, PATANNATHARA VADAKKETHIL VEEDU, PATTOLI MARKET P. O., CHAVARA MUKKU MURI, KANDALLOOR VILLAGE, ALAPPUZHA, PIN - 690531 ``` ``` BY ADVS. B.PRAMOD BIJU VIGNESWAR ATHUL M.V. ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` - **`2 THE STATION HOUSE OFFICER, HARIPPAD POLICE STATION, ALAPPUZHA., PIN - 690514`** ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2176 of 2024 ## -:2:- Dated this the 27[th] day of April,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 13[th] accused in Crime No.731/2021 of the Harippad Police Station, Alappuzha, registered against the accused (20 in number) for allegedly committing the offences punishable under Sections 8A (c), 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (‘the Act’ for short), 1985. The petitioner was arrested on 24.02.2024. 2. The crux of the prosecution case is that: the accused, in furtherance of their common intention to make unlawful gain, had purchased 200 grams of MDMA from the 11[th] accused on 02.11.2021 from Bangalore. The accused 1 to 7 were learnt selling MDMA in retail at room No.61 of Mangalya Resort, ## B.A.No.2176 of 2024 ## -:3:- Danappady. On 07.11.2021, at around 23.05 hours, CW72 got a secret information regarding the retail sale of MDMA. Based on the said information, he conducted a search of the above premises, and 52.410 grams of MDMA were seized from accused 1 to 7. They were arrested at the spot with the contraband. In the investigation that was conducted, it was unveiled that the 13[th] accused had purchased 30 grams of MDMA from the 9[th] accused, who in turn had purchased it from the accused 1 and 2. Thus, the accused have committed the above offences. 3. Heard; Sri. B.Pramod, the learned counsel appearing for the petitioner and Smt. Neema. T.V., 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 alleged purchase B.A.No.2176 of 2024 ## -:4:- made by the petitioner. It is solely on the basis of the alleged monetary transaction between the petitioner and the 9[th] accused, that the petitioner has been implicated in the crime. The accused 1 and 20 are at large. The other 17 accused have already been arrested and enlarged on bail. The petitioner has been in judicial custody since 24.02.2024, which is 90 days, the investigation in the case is practically complete, and the final report has already been laid. As the prosecution case against the petitioner is solely on the basis of the financial transaction, the rigour under Section 37 of the Act will not apply. Moreover, there is an identical allegation made against the 12[th] accused, who has been enlarged on bail by the Court of Session, Alappuzha, as per Annexure A5 order. Therefore, the petitioner is entitled to the benefit of a similar order, especially since he is a person without criminal antecedents. Hence, the application may be allowed. ## B.A.No.2176 of 2024 -:5:- 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the accused 10, 15, 16, and 20 are absconding. The other accused have been arrested and have been enlarged on bail. The Investigating Officer has stated that the specific overt act alleged against the petitioner is that he had paid an amount of Rs.38,000/- to the 9[th] accused through Google Pay to purchase 30 grams of MDMA at the rate of Rs.1200/- per gram. The amount was paid to mobile number 8075493892 of the 9[th] accused. There are incriminating materials to substantiate that, on 07.11.2021, the 9[th] accused had gone to the residence of the petitioner and handed over the contraband article. The petitioner is an active partner in the crime. If the petitioner is released on bail, he would tamper with the evidence and intimidate the witnesses. Moreover, since a commercial quantity of contraband is B.A.No.2176 of 2024 -:6:- involved in the case, the rigour under Section 37 would apply. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that the accused 1 to 7 had purchased 200 grams of MDMA from the 11[th] accused from Bangalore and were dealing with the same. Subsequently, the petitioner had transferred an amount of Rs.38,000/- to the 9[th] accused, who in turn handed over 30 grams of MDMA to the petitioner. The fact remains that no contraband was seized from the conscious possession of the petitioner. The only incriminating material projected by the prosecution is that an amount of Rs.38,000/- was transferred by the petitioner through Google Pay, to the mobile number of the 9[th] accused. 7. The prosecution had made a similar allegation against the 12[th] accused, stating that he had transferred money to the 9[th] accused for the purchase of MDMA. Indisputably, by Annexure-5 order, the Court B.A.No.2176 of 2024 ## -:7:- of Session, Alappuzha, has enlarged the 12[th] accused on bail on the ground that the investigation is in progress and the other apprehended accused in the crime have already been enlarged on bail. 8. On an evaluation of the materials on record, there is no doubt that the allegation against the petitioner is that he had purchased a commercial quantity of contraband from the 9[th] accused after paying an amount of Rs.38,000/-. If the allegation is taken on its face value, certainly the rigour under Section 37 of the Act applies, and the petitioner would have to substantiate the twin conditions contemplated under Section 37 of the Act. However, the only material that has been stated in the bail objection report is the monetary transaction between the petitioner and the 9th accused. 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 ## B.A.No.2176 of 2024 ## -:8:- **Amal E & Anr V. State of Kerala** [2023 Live Law (Ker) 329] that a financial transaction alone cannot be taken as a criteria to attract the rigour under Section 37 of the Act. Admittedly, the 12[th] accused, who has been attributed with the same set of allegations as that of the petitioner, has been enlarged on bail by the Court of Session, as per Annexure-5 order. The investigation in the case is complete, and the complaint has already been laid. 9. 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 over act alleged against the petitioner is the two alleged monetary transaction between the petitioner and the 9th accused, that the 12[th] accused and fourteen other accused have already been enlarged on bail, that the investigation in the case is complete, and that the complaint has been laid, B.A.No.2176 of 2024 ## -:9:- I hold that the petitioner is also entitled to the benefit of a similar order as Annexure-5, as there are reasonable grounds to find that the petitioner has not committed the offence and also has no criminal antecedents in view of the ratio laid down by the Hon’ble Supreme Court in **Dheeraj Kumar Shukla v. The State of Uttar Pradesh** [2023 KHC 6545]. Hence, 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; - (ii) The petitioner shall not directly or indirectly B.A.No.2176 of 2024 -:10:- 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. (vi) Applications for deletion/modification of the B.A.No.2176 of 2024 ## -:11:- 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/27.05.24