IMPORTANT POINT
The main legal point established in the judgment is the strict application of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, which restricts the release on bail of an accused involved in offences under the Act and involving commercial quantity unless there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail.

ORDER :

The third accused in Crime No.1766 of 2023 of the Attingal Police Station, Thiruvananthapuram, which is registered against five accused persons for allegedly committing the offences punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’, for brevity), is before this Court, for the second time, with this application under Section 439 of the Code of Criminal Procedure, 1973 (‘Code’, for short).

2. The prosecution case, in brief, is that: on 30.07.2023, at around 04.00 hours, the Detecting Officer and party intercepted a car bearing Registration No.DL-4-CNE-365, in which five persons were travelling, conducted a search of the vehicle, and they seized 89.70 grams of MDMA from the vehicle. The five persons were arrested on the spot with the contraband article, and are arraigned as accused 1 to 5 in the crime.

3. Heard; Sri.M.R.Rajesh, the learned counsel for the petitioner and Smt. Seetha S, the learned Public Prosecutor.

4. The learned counsel for the petitioner submitted that, the petitioner is innocent of the accusations levelled against him. There is no material to establish the petitioner’s involvement in the crime. As the final report has been laid now, there is a change of circumstance after the dismissal of the petitioner’s earlier application. The petitioner has been languishing in jail since 30.07.2023. This Court had dismissed the petitioner’s earlier application mainly on the ground that the petitioner has criminal antecedents, as he is involved in two crimes in 2013 and 2017. Actually, the crimes have no significance. It is only a recent crime that has any relevance. Additionally, as the petitioner was only a co-passenger in the car, he cannot be attributed to having committed the offences. Hence, the application may be allowed.

5. The learned Public Prosecutor vehemently opposed the application. She submitted that there is no change of circumstance to file the second application. Immediately after the passing of Annexure B order by this Court on 22.01.2024, the petitioner approached the Court of Session, Thiruvananthapuram and filed a fresh application. By Annexure C order, the application was dismissed on 17.02.2024. Then, the petitioner has moved this Court. The petitioner is indulging in forum-shopping by hopping from one Court to the other. The petitioner is a person with criminal antecedents, as he is involved in two other crimes in 2013 and 2017, and there is convincing material to establish the petitioner’s involvement in the crime. The application falls within the sweep of Section 37 of the Act. If the petitioner is released on bail, he is likely to commit an offence. Therefore, the application may be dismissed.

6. The prosecution allegation against the petitioner and the other accused is that they were found in conscious possession of 89.70 grams of MDMA.

7. The petitioner had filed B.A.No.182 of 2024 before this Court, which was dismissed by Annexure B order on the findings that there are prima facie materials to substantiate the petitioner’s involvement in the crime, the contraband involved in the case is of a commercial quantity and that the petitioner is a person with criminal antecedents.

8. Immediately, thereafter, the petitioner filed an application before the Court of Session, Thiruvananthapuram. By Annexure C order, the application was dismissed on the findings that the petitioner is involved in Crime Nos.803/2013 and 1098/2017 of the Kadakkavur Police Station and that there are incriminating materials to establish his involvement in the crime.

9. Then, the petitioner has moved the third application before this Court.

10. The sheet anchor of the learned counsel for the petitioner is that, as the final report has been laid, there is a change of circumstance, and the two crimes are not of the recent past. Therefore, the second limb of Section 37 of the Act is not attracted.

11. Before adverting to the above contentions, it is germane to point out that, i