High Court of KeralaSingle Judge2024-01-25Bail granted; petition allowed. Accused release...

Saidali and Niyas v. State of Kerala and The Station House Officer, Kundara Police Station

Case / Petition Number:B.A.No.10637 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-01-25
Court Decision / Holding: The bail application is allowed. Accused 2 and 4 are directed to be released on bail on bonds of Rs.1,00,000 each with two solvent sureties of like amount. Conditions: (i) they shall appear before the Investigating Officer on alternate Saturdays for two months or until final report; (ii) they shall not induce, threaten, or tamper with witnesses; (iii) they shall not commit any offense while on bail; (iv) they shall surrender their passports if applicable; (v) violation may lead to cancellation of bail; (vi) the court below may delete/modify bail conditions; (vii) IO may continue investigation and effect recoveries as guided by Sushila Aggarwal v. State(NCT of Delhi) and Anr.; these conditions reflect a balance between facilitating liberty and ensuring fair investigation.
Final Disposition: Bail granted; petition allowed. Accused released on bail with specified bonds and conditions.

Parties to the Case

Appellants / Petitioners

Saidali
Niyas

Respondents

State of Kerala
The Station House Officer, Kundara Police Station

Legal Representation & Advocates

Counsels for Petitioners

• N. Sunil Joseph

Counsels for Respondents

• Neema T V

Case Synopsis & Summary

This is a bail application under Section 439 CrPC filed by accused 2 and 4 in Crime No.2039/2023 of Kundara Police Station, Kollam, challenging an order in CRMC 2355/2023. The petition concerns five accused allegedly found in possession of 18 grams of MDMA near Shamnad Manzil at Perumpuzha on 18.10.2023. The contraband was initially described as MDMA, a commercial quantity under NDPS Act. Petitioner claims innocence and false involvement, having been in custody since 18.10.2023. On 12.01.2024, the IO was directed to produce a Chemical Analysis Report; the report relating to the 5th accused suggested the substance was methamphetamine rather than MDMA, leading to the conclusion that the contraband is only an intermediate quantity. The learned Public Prosecutor conceded the report. The judge found that given the corrected analysis, the accused are in custody for a long time and the investigation is substantially complete, thus the petitioners are entitled to bail with stringent conditions. The order grants bail to each accused on a bond of Rs.1,00,000 with two solvent sureties and imposes conditions including periodic appearance before the IO, no inducement or tampering with evidence, prohibition on new offenses, surrender of passports, and the possibility of cancellation or modification of bail for non-compliance, while noting the authority of the IO to investigate and recover information as laid down in Sushila Aggarwal.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

Legal Doctrines & Maxims

Intermediate quantity concept under NDPS Act
Principles governing bail and conditions as per Sushila Aggarwal v. State(NCT of Delhi) and Anr.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that they are innocent and have been falsely implicated in Crime No.2039/2023; they have been in custody since 18.10.2023; their bail application was considered after the Chemical Analysis Report showed methamphetamine (not MDMA); the contraband is intermediate quantity; hence they seek release on bail with stringent conditions; they emphasize prolonged detention and the need for fair consideration of bail given investigation is largely complete.

Contentions of Respondents

The State opposed bail but conceded the chemical analysis report showing methamphetamine instead of MDMA and argued that the contraband is an intermediate quantity; the investigation is complete; the State urged bail be granted with standard conditions to ensure cooperation and non-interference with the investigation; the authority cited includes the principle that certain investigations can continue and recoveries can be made under bail, as supported by relevant precedents.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State(NCT of Delhi) and Anr.	2020 (1) KHC 663	Positive	Cited as authority for allowing investigations and recoveries by the Investigating Officer even while the accused is on bail; used to justify the imposition of bail with conditions that preserve the integrity of the investigation.

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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 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 10637 OF 2023 ``` ``` CRIME NO.2039/2023 OF KUNDARA POLICE STATION, KOLLAM AGAINST THE ORDER IN CRMC 2355/2023 OF DISTRICT COURT & SESSIONS COURT,KOLLAM ``` ## `PETITIONERS/ACCUSED 2 AND 4:` ``` 1 SAIDALI AGED 22 YEARS S/O SIRAJUDEEN, S.S. MANZIL, NEAR CHARUVILA CASHEW FACTORY, CHATHINAMKULAM CHERI, MANGADU VILLAGE, KOLLAM DISTRICT., PIN - 691015 2 NIYAS AGED 22 YEARS S/O NAVAS, N.N.HOUSE, ASTHAMUDI, PERINADU (PO), THRIKKARUVA VILLAGE, KOLLAM DISTRICT., PIN - 691601 BY ADV N.SUNIL JOSEPH ``` ## `RESPONDENTS/STATE & COMPLAINANT:` ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 THE STATION HOUSE OFFICER KUNDARA POLICE STATION, KUNDARA (PO), KOLLAM DISTRICT., PIN - 691501 BY SR PP SMT NEEMA T V ``` ## B.A.No.10637 of 2023 -:2:- ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.10637 of 2023 ## -:3:- ## Dated this the 25[th] day of January, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 2 and 4 in Crime No.2039/2023 of the Kundara Police Station, Kollam, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioners were arrested on 18.10.2023. 2. The gist of the prosecution is that: around 4.50 p.m on 18.10.2023, the police party detected the accused in the case in possession of 18 grams of MDMA, in a shed near a house named Shamnad Manzil at Perumpuzha. The contraband article was seized from the pocket of the first accused. Thus, the accused have committed the above offences. B.A.No.10637 of 2023 -:4:- 3. Heard; Sri. N. Sunil Joseph, the learned counsel appearing for the petitioners and Smt. Neema. T.V, the learned Public Prosecutor appearing for the respondents. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The petitioners have been languishing in jail since 18.10.2023. When the bail application came up for consideration on 12.01.2024, this Court directed the Investigating Officer to produce the Chemical Analysis Report. Today, the Investigating Officer has produced the Chemical Analysis Report in B.A. No.300/2024, the bail application filed by the 5[th] accused. In the said report, it is found that the contraband article is 'methamphetamine' and not 'MDMA', as alleged by the prosecution. Therefore, the contraband is only an intermediate quantity. Hence, The petitioners are entitled to be released on bail. B.A.No.10637 of 2023 ## -:5:- 5. The learned Public Prosecutor opposed the application. However, she conceded to the fact that the petitioners were arrested on 18.10.2023 and the investigation in the case is complete. She also handed over the chemical analysis report dated 21.12.2023 issued by the State Forensic Science Laboratory, Thiruvananthapuram, which shows that the contraband article is 'methamphetamine' and not 'MDMA'. 6. The prosecution was lodged against the accused principally on the allegation that the accused were found in possession of 18 grams of 'MDMA', which is a commercial quantity. It is on the basis of the said accusation that the petitioners were arrested on 18.10.2023 and were remanded to judicial custody. It has now come on record, as per the chemical analysis report dated 21.12.2023, that the contraband article is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only intermediate quantity. B.A.No.10637 of 2023 ## -:6:- 7. After bestowing my anxious consideration to the materials placed on record, particularly to the chemical analysis report, that the contraband is an intermediate quantity, that the petitioners are in custody since 18.10.2023 and, that the investigation is practically complete, I am of the view that the petitioners are entitled to be released on bail, subject to stringent conditions. 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) each 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 alternate Saturdays between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier and he shall also appear before the Investigating Officer as and when required; B.A.No.10637 of 2023 ## -:7:- - (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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioners shall not commit any offence while he is on bail; - (iv) The petitioners shall surrender their passports, if before the court below at the time of - any, execution of the bonds. If they have no passports, they 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 moved and entertained by the court below. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate B.A.No.10637 of 2023 ## -:8:- 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 Anr.** [2020 (1) KHC 663]. Sd/- **C.S.DIAS,JUDGE** mtk/25.01.24