High Court of KeralaSingle Judge2024-02-07Bail granted to the second accused on stringent...

NIZAR BABU v. STATE OF KERALA

Case / Petition Number:BAIL APPL. NO. 538 OF 2024; CRIME NO. 921/2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-02-07
Court Decision / Holding: The bail application is allowed. The petitioner Nizar Babu is to be released on bail upon executing a bond for Rs. 1,00,000 with two solvent sureties of like amount. Conditions include: (i) appearance before the Investigating Officer every Saturday for three months or until final report (whichever is earlier); (ii) refrain from any inducement or tampering with witnesses; (iii) not commit any offence while on bail; (iv) surrender/passport as directed; (v) the court may cancel or modify bail on breach; (vi) the IO may continue investigations and effect recoveries as permissible under law. Bench also cites Sushila Aggarwal v. State (NCT of Delhi) for the permissibility of continuing investigations while on bail.
Final Disposition: Bail granted to the second accused on stringent conditions.

Parties to the Case

Appellants / Petitioners

NIZAR Babu

Respondents

STATE OF KERALA represented by Public Prosecutor, High Court of Kerala, PIN - 682031

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. Vijaya Bhanu (Senior)
• P. Rafiq
• M. Revikrishnan
• Ajeesh K. SasI
• Sruthy K.K
• Rahul Sunil
• Sruthy N. Bhat
• Nikita J. Mendez

Counsels for Respondents

• Sri C. S. Hrithwik (Senior Public Prosecutor)

Case Synopsis & Summary

This is a bail application under Section 439 CrPC filed by the second accused, Nizar Babu, in Crime No. 921/2023 of Kozhikode Town Police Station, alleging offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), specifically Sections 20(b)(ii)(C) and 27A read with Section 29. The contraband, 29.285 kg of ganja, was seized on 16.09.2023 from a pickup van in which the accused were travelling, and was reportedly sourced from Odisha for alleged sale. The prosecution contends that the accused acted with common intention to procure contraband from outside the state; thus, Section 27/29 and the rigour of Section 37 NDPS should apply. The petitioner argues innocence, claiming he was merely a passenger, with no criminal antecedents, and emphasises the lengthy pre-trial detention (since 16.09.2023), near completion of investigation, and the fact that the quantity may constitute an intermediate rather than commercial amount. The court, after weighing the facts—especially the near-commercial quantity, extended detention, and absence of prior offences—observes that the rigour under Section 37 is diluted given the circumstances and grants bail subject to stringent conditions, including bond and sureties, regular appearances, non-tampering with witnesses or evidence, surrender of passport, and potential for cancellation or modification of bail on breach. The order also permits continuing investigation and recoveries under the framework laid out by higher courts.

Provisions of Law Cited

Code of Criminal Procedure, 1973 – Section 439Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(b)(ii)(C), 27A read with Section 29, and Section 37

Legal Doctrines & Maxims

Rigour of Section 37 of the NDPS Act can be diluted in appropriate circumstances
Bail under NDPS Act can be granted with stringent conditions
Cited to support continued investigation/recoveries under bail as per 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 has been falsely implicated; at most, he was a passenger in the vehicle and cannot be accused of committing offences under the NDPS Act. He has been in judicial custody since 16.09.2023, over 144 days, with the investigation nearly complete and recovery effected. There are no criminal antecedents. The contraband quantity, though substantial (29.285 kg of ganja), touches but does not definitively constitute a commercial quantity as per NDPS Schedule, thus supporting a case for bail. He argues that the law should dilute the rigour of Section 37 given the circumstances and grant bail with stringent conditions while ensuring the state’s interests are safeguarded.

Contentions of Respondents

The State contends that Sections 27 and 29 NDPS were invoked to reflect common intention to procure contraband from outside the state, with the ganja seized from the vehicle intended for sale. Consequently, Section 37 NDPS applies, justifying a denial of bail. The prosecution stresses the near-commercial quantity and the need to maintain the integrity of ongoing investigation, contending that bail should be refused or severely restricted to prevent possible evasion or further procurement.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Mentioned Only	Cited to support that investigations/recoveries may continue post-bail per Supreme Court guidance, but not central to the grant of bail in this case.

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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 ``` ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 BAIL APPL. NO. 538 OF 2024 CRIME NO.921/2023 OF KOZHIKODE TOWN POLICE STATION, KOZHIKODE ``` ## **`PETITIONER/SECOND ACCUSED:`** ``` NIZAR BABU AGED 36 YEARS S/O. KUNJAMMU, PERUVANKUZHIYIL HOUSE, DOWN HILL, MALAPPURAM, PIN - 676519 ``` ``` BYADVS. ``` ``` SRI.P.VIJAYA BHANU (SENIOR) P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY K.K RAHUL SUNIL SRUTHY N. BHAT NIKITA J. MENDEZ ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SRI C S HRITHWIK ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ## **`07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** B.A No.538 of 2024 2 Dated this the 7[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 second 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) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the 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 1 and 2 were found in conscious possession of 29.285 kg 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 arrested with the B.A No.538 of 2024 3 contraband. It is learnt that the contraband was procured from the 3[rd] accused from the State of Odissa. Thus, the accused have committed the above offences. 3. Heard Sri. P. Vijaya Bhanu, the learned Senior Counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned Senior 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 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. Since the contraband was allegedly seized from the B.A No.538 of 2024 4 accused 1 and 2, it cannot be treated as a commercial quantity. Instead it only be inferred as 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 Act applies to the facts and circumstances of the case. Hence, the application may be dismissed. 6. The prosecution case is that 29.285 kg of Ganja was seized from the pickup van in which the accused 1 and 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 kg of B.A No.538 of 2024 5 Ganja, which is just touching the commercial quantity as contemplated under the Schedule of the Act, and was seized from the vehicle in which the accused 1 and 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 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 no likely to commit a similar offence and, therefore, the rigour under Section 37 of the 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 B.A No.538 of 2024 6 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; - (iii) The petitioner shall not commit any offence while he is on bail; B.A No.538 of 2024 7 - (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 B.A No.538 of 2024 8 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]. **Sd/-** **C.S.DIAS, JUDGE** mtk/07.02.24 B.A No.538 of 2024 9 ## **`APPENDIX OF BAIL APPL. 538/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1 ``` ``` A TRUE COPY OF THE ORDER IN CRL.M.P.NO. 1076/2023 DATED 10.11.2023 OF THE COURT OF SPECIAL JUDGE (NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT) COURT, VADAKARA. ```