Sidhique v. State of Kerala

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 ``` ``` BAIL APPL. NO. 8587 OF 2023 ``` ``` CRIME NO. 840 OF 2022 OF PEERINTHALMANNA POLICE STATION, MALAPPURAM ``` ## _`PETITIONER/S:`_ ``` SIDHIQUE AGED 52 YEARS S/O. MUHAMMED, KOORIMANNIL HOUSE, ERANTHODE, VALAMBUR P.O., MALAPPURAM DISTRICT., PIN - 679325 BY ADVS. P.SAMSUDIN MILAN RACHEL MATHEW NASRIN WAHAB ``` ## _`RESPONDENT/S:`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## _`OTHER PRESENT:`_ ``` SR PP K DENNY DEVASSY ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No. 8587 of 2023 ``` ``` ..2.. ``` ## _**O R D E R**_ **Dated this the 16[th ] day of October, 2023** This is a second application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the 2[nd] accused in Crime No.840/2022 of Perinthalmanna police station, Malappuram alleged to have committed offences punishable under Section 20(b)(ii)(C) r/w 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as 'NDPS Act', for short), 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have perused the relevant documents forming part of the case diary placed by the learned Public Prosecutor and the report of the Investigating Officer. 4. The prosecution case is that, based on an information received to the effect that the accused Nos.1 and 2 jointly ``` B.A. No. 8587 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** possessed narcotic drugs at about 08:30 hrs. on 05.08.2022, when the police party inspected the petitioners near Sri Muthuvara Vishnu temple, Angadipuram, 1.020 Kg of Hashish oil recovered from the 1[st] accused, which was kept in a cover at the hands of the 1[st] accused. The prosecution allegation is that accused Nos.1 and 2 jointly possessed the same for the purpose of sale against the prohibitions contained in the NDPS Act. Accordingly, they were nabbed red-handedly and crime was registered alleging commission of the above offences. 5. While canvassing regular bail to the 2[nd] accused, the learned counsel for the petitioner initially submitted that the confession statement recorded as that of the 1[st] accused is relied on by the prosecution to implicate this petitioner as the 2[nd] accused and confession statement is in admissible evidence. He also pointed out that the petitioner was arrested on 05.08.2022 and final report already filed. It is also submitted that the ``` B.A. No. 8587 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** petitioner is a first time offender and he has completed fourteen months of custody and therefore, in this case the ratio in the decision _**Fasil v. State of Kerala**_ [2023 (3) KHC 212] squarely applies, since the trial also could not be completed within a period of six months. 6. Whereas, the learned Public Prosecutor submits that in this case accused Nos.1 and 2 were arrested from the spot along with the contraband and the submission made by the learned counsel for the petitioner that the 2[nd] accused was implicated based on the confession statement of the 1[st] accused is patently wrong. Highlighting the contraband as commercial quantity, the learned Public Prosecutor objected bail on the submission that Section 37 of the NDPS Act, interdicts grant of bail. 7. On perusal of the recovery Mahazar, it is clear that accused Nos.1 and 2 were jointly nabbed by the police and on search conducted, doubting possession of contraband by them. It ``` B.A. No. 8587 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** is true that the contraband was recovered by the cover possessed by the 1[st] accused, who was present along with the 2[nd] accused, at the place, where they were suspected to have possessed the contraband. Therefore, in this case, it could not be held that the petitioner got arrayed as the accused, merely on the basis of confession statement, and, in fact, the recovery is red handed recovery. 8. In the case at hand, the contraband was found in the conscious possession of the first accused, who has criminal antecedents. The petitioner has been in custody for the last fourteen months and he is a person having no criminal antecedents and the trial could not be materialized within a period of six months. As far as the petitioner, who is the 2[nd] accused is concerned, his case at par with the facts of the case dealt in _**Fasil**_ ’s case (supra). 9. In _**Fasil**_ ’s case (supra), this Court held as under: ``` B.A. No. 8587 of 2023 ``` ``` ..6.. ``` _“10. Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act:_ _(1) the accused should not have any criminal antecedents._ _(2) the accused has been in custody for a pretty long time, at least more than one year, (say for eg. two years and 15 days in the instant case)._ _(3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months)._ _Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”_ Therefore, this petition stands allowed. The petitioner is ## enlarged on bail on the following conditions: ``` B.A. No. 8587 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** i. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Special court concerned. ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial. iii. The petitioner shall not leave India without the permission of the Special court. iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court. v. The petitioner shall surrender his passport before the Special Court on the date of execution of the bail ``` B.A. No. 8587 of 2023 ``` ``` ..8.. ``` bond or within ten days therefrom, with special permission of the Special Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time. vi. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```