Petitioner accused of possessing commercial quantity of MDMA sought regular bail. Court dismissed application citing initial investigation stage, prima facie evidence, and commercial quantity triggering NDPS Act severity provisions. Challenge to prior rejections noted.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 21ST DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944
BAIL APPL. NO. 277 OF 2023
AGAINST THE ORDER/JUDGMENTSC 692/2022 OF SPECIAL COURT (NDPS ACT
CASES), VADAKARA
PETITIONER/ACCUSED NO.4:
ABDUL FATHAAH AGED 24 YEARS S/O. MUHAMMED ASLAM, AGED 24 YEARS, FAJAR HOUSE, PUTHOOR P.O., VATAKARA TALUK, KOZHIKODE DISTRICT,, PIN - 673104
BY ADVS. SHANID P. P.P.HASHICK
RESPONDENT/STATE AND COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
PP: SYAMANTHAK B.S.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A. No.277 of 2023 2
VIJU ABRAHAM, J.
B.A. No.277 of 2023
Dated this the 21st day of February, 2023
O R D E R
Application for regular bail.
No.125 of 2022 of Koorachundu Police Station
registered alleging commission of offences punishable under Section 22(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”).
at about 22:50 hours, the Sub Inspector of Koorachundu Police Station received an information that accused Nos.1 to 3 are selling narcotic drugs
in a car bearing registration No.MH 04 CZ 31. The
detecting officer and party proceeded to the place disclosed in the information and found accused Nos.1
to 3 sitting in the car. On personal search of
accused Nos.1 to 3, MDMA was found in their
B.A. No.277 of 2023 3
possession. MDMA was also found in the dashboard of the said car. A total quantity of 68.520 grams of MDMA was seized.
confession statement of the co-accused the petitioner has been arrayed as an accused. Petitioner relies on the decision in Toofan Singh v.
State of Tamil Nadu, (2013) 16 SCC 31 to contend that the confession statement recorded under Section 67 of the NDPS Act is inadmissible and has no evidentiary value. Even though the petitioner moved an application for bail before the Special Court for NDPS cases seeking bail, it was rejected as per Annexure-1 order and earlier bail application before this Court was dismissed as per Annexure-IV order.
investigation is at the initial stage and the
investigation so far conducted revealed that on 21.08.2022 A1 and A4, who is the petitioner herein,
B.A. No.277 of 2023 4
had gone to Bangalore and A4 introduced A1 to the
main distributor and they jointly purchased MDMA from the main distributor, which is of a commercial quantity. The verification of CDR of his mobile phone also revealed that on 22.08.2022 the petitioner had interacted with the main distributor at Bangalore through his mobile phone and an amount of Rs. 18000/- was transferred to the account of the
main distributor through UPI transaction from his account maintained at IDBI Vatakara Branch and an advance amount was sent to the bank account of the main distributor and the screen shot of the same was again sent to the main distributor by using his mobile phone. Based on the above facts learned Public Prosecutor submitted that there are sufficient prima facie evidence to hold that the
petitioner is involved in the alleged crime. Learned Prosecutor further submitted that the investigation is going on.
petitioner earlier and I have rejected the same as
B.A. No.277 of 2023 5
per Annexure A4 order. Since the quantity of contraband seized is of a commercial quantity, the rigor of Section 37 of the NDPS Act will come into play. Considering the facts and circumstances of the case and the nature of the allegations and also taking note of the fact that the investigation is going on, I am not inclined to grant bail to the petitioner at this stage. The dismissal of the bail application will not preclude the petitioner from moving this court or the trial court seeking bail.
The bail application is accordingly dismissed.
sd/-
VIJU ABRAHAM, JUDGE
pm
3 issues framed by the court
Whether regular bail should be granted to petitioner facing commercial quantity NDPS charge during initial investigation stage.
Whether confession statement of co-accused recorded under Section 67 of NDPS Act affects admissibility of prosecution case.
Whether conviction for commercial quantity of drugs attracts severity of Section 37 NDPS Act for preliminary bail assessment.
Colour shows how this judgement treated each authority
Toofan Singh v. State of Tamil NaduReferred¶34
Toofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31 · Who else cites this
2 provisions across 1 enactments
ABDUL FATHAAH
STATE OF KERALA
VIJU ABRAHAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
