Bail under the NDPS Act requires reasonable grounds for believing the accused is not guilty, especially in cases involving commercial quantities.

ORDER

This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973 , by the second accused in Crime No.455/2023 of the Shornur Police Station, Palakkad, which is registered against two accused persons, for allegedly committing the offences punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’, in short). The petitioner was arrested on 8.7.2023.

2. The prosecution case, in brief, is that: on 14.7.2023, at around 11:20 hours, the first accused was found in conscious possession of 98.87 grams of MDMA. He was arrested on the spot with the contraband article. During the course of investigation and in the interrogation of the first accused, he confessed that the contraband was purchased from Bangalore by the second accused and given to him. Thus, the accused have committed the above offences.

3. Heard; Sri.P.Vijayabhanu, the learned Senior Counsel appearing for the petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor.

4. The learned Senior Counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. There is a change of circumstance subsequent to the passing of Annexure-8 order since the complaint(charge-sheet) has been filed. The petitioner has been implicated solely on the basis of the confession statement of the first accused, which is inadmissible in evidence in the light of the law laid down in Tofan Singh v. State of Tamil Nadu [2020 (2) KLD 781]. In addition to the same, it is only on the basis of the revelation made by the first accused that the money for purchasing the contraband was paid by the petitioner through the bank account of CW22, which was operated by the petitioner, that the petitioner has been made an accused in the crime. The present crime is an aftermath of the complaint filed by the petitioner against the custodial torture against him while he was undergoing custody in Crime No.418/2023. It was out of this animosity that the Police have made the petitioner an accused in the present crime. There is an infraction of Sec.52A of the Act because even though the alleged contraband was seized on 14.7.2023, the same was produced before the jurisdictional Magistrate only on 20.7.2023, that is after a period of six days. There is no plausible explanation for the inordinate delay. The said delay has caused prejudice to the petitioner and is against the legislative mandate of the Act. In addition to the above contentions, while considering the petitioner’s earlier bail application, the learned Public Prosecutor contended that the petitioner had purchased the contraband from a Nigerian lady from Bangalore. Surprisingly, there is no such case in the complaint filed. This casts a shadow on the prosecution case. There are reasonable grounds to hold that the petitioner has not committed the above offences. Hence, the application may be allowed.

5. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials to substantiate the petitioner’s culpability in the crime. The petitioner is a habitual offender since he is involved in two other crimes, viz., Crime Nos.418/2023 of Pattambi Police Station and 435/2023 of the Shornur Police Station for committing offences under the NDPS Act. Therefore, the petitioner fails to qualify the second limb of Sec.37 of the Act in view of the declaration of law in Dheeraj Kumar Shukla vs. State of Uttar Pradesh (2023 KHC 6545) . There is clinching material to establish that the first accused had transferred an amount of Rs.40,000/- to the bank account of CW2