IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 22^ND DAY OF MAY 2023 / 1ST JYAISHTA, 1945 BAIL APPL. NO. 3167 OF 2023 CRIME NO.777/2022 OF KONDOTTY POLICE STATION PETITIONER/9TH ACCUSED:

RAVEENDRAN.P AGED 47 YEARS, S/O. GOVINDANKUTTY NAIR, MULANTHALPATTU HOUSE, K.PURAM POST, TANALUR, MALAPPURAM DISTRICT, PIN - 676307 BY ADV K.MOHANAKANNAN RESPONDENT/STATE:

STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN - 682031 T V NEEMA – SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

Dated this the 22^nd day of May, 2023 This is the 2^nd application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the 9^th accused in crime No.777/2022 of Kondotty Police Station, Malappuram.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials form part of the case diary, placed by the learned Public Prosecutor. 3. The earlier bail application was dismissed vide order in B.A.No.10345 of 2022 dated 15.02.2023 and the said order is as under:

“This is an application for regular bail, filed by the 9th accused in Crime No.777/2022 of Kondotty Police Station.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

3. I have perused the Case Diary materials placed by the learned Public Prosecutor.

4. The prosecution allegation is that, 92.30 grams of MDMA was found in possession of accused Nos.1 to 5, while they were transporting the same in a tourist car, driven by the 9th accused.

The further allegation of the prosecution is that, accused No.9, along with accused Nos.6 to 8 aided the other accused to transport the contraband against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’).

5. The learned counsel for the petitioner would submit that the petitioner is innocent. According to him, the petitioner happened to be the driver of the tourist car, without knowledge regarding transport of MDMA at the instance of accused Nos.1 to 5. Therefore, he is absolutely innocent. Accordingly, the petitioner, who has been in custody from 9.10.2022, deserves regular bail. 6. Whereas, the learned Public Prosecutor submitted that the petitioner, who had driven the tourist car, collected MDMA from accused Nos.6 to 8 and transported the same in his car, joining hands with other accused. Therefore, his complicity is on par with other accused. It is submitted further that, since the quantity of contraband is commercial, the rigor under Section 37 of the NDPS Act would apply and without diluting the same, bail cannot be granted.

7. Here, the prosecution allegation is that, 92.30 grams of MDMA was transported in a car, admittedly driven by the petitioner/9th accused. The case diary would go to show that, accused Nos.1 to 9 have contributed equally in the matter of transport. Therefore, there is no reason to read the complicity of the petitioner in segregation, particularly, when the prosecution has a specific case that, it was accused No.9, who collected the contraband from accused Nos.6 to 8 and transported the same, being the driver of the car.

8. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under:

37. Offences to be cognizable and non-bailable.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and