IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 23^RD DAY OF MAY 2023 / 2ND JYAISHTA, 1945 BAIL APPL. NO. 3767 OF 2023 CRIME NO. 4 OF 2023 OF ETTUMANOOR EXCISE RANGE OFFICE, KOTTAYAM PETITIONER/ACCUSED 2:

ALBIN SHAJI AGED 28 YEARS S/O SHAJI N.A , NARIKUZHIYIL HOUSE, VETTIMUKAL P.O, ETTUMANOOR, KOTTAYAM DISTRICT., PIN - 686631 BY ADVS.

K.MOHAMMED RAFEEQ P.M.MATHEW AMARNATH R LAL SANALDEV E.P.

VISHNUMAYA ANANDAN RESPONDENTS/STATE AND COMPLAINANT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN - 682031

2 EXCISE RANGE OFFICER, EXCISE RANGE OFFICE, ETTUMANOOR, KOTTAYAM DISTRICT., PIN - 686631 BY SMT.T V NEEMA SR-PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

23.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O R D E R Dated this the 23^rd day of May, 2023 This is an application seeking anticipatory bail filed by the 2^nd accused in Crime No. 4 of 2023 of Ettumanur Excise Range Office, Kottayam.

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

3. I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor.

4. The prosecution case is that, at about 2.45 p.m on

13.02.2023, when the Excise Inspector and party were doing patrolling duty, an information, received to the effect that accused Nos. 1 to 3 jointly possessing MDMA. Accordingly, when search was conducted, 3.2835 grams of MDMA was seized. On seeing the Excise Party, the accused Nos. 2 and 3 ran away from the spot. Thereafter, the Excise Party arrested the 1^st accused from the spot after recovery of the contraband. Pursuant to arrest of the 1^st accused and recovery of the contraband, crime alleging commission of offences punishable under Section 22(b), 29 and 25 of Narcotic Drugs and Psychotropic Substances Act is registered and is on investigation.

Subsequently, A3 was arrested on 05.03.2023.

5. The learned counsel for the petitioner submitted that the petitioner is innocent and the petitioner got arrayed as the 2^nd accused in this crime merely on the ground that, the contraband was seized from the possession of the 1^st accused while he was transporting the same in the motor cycle belonged to the petitioner/ 2^nd accused and the petitioner/ 2^nd accused handed over the motor bike to the 1^st accused for a temporary purpose and therefore, the petitioner/ 2^nd accused has no knowledge regarding the transport and possession of the contraband. Therefore, the petitioner/ 2^nd accused deserves anticipatory bail.

6. Whereas, the learned Public Prosecutor strongly opposed anticipatory bail and submitted that the submission made by the learned counsel for the petitioner is incorrect. According to the learned Public Prosecutor, the Excise Party found accused Nos. 1 to 3 together on the motor bike, along with the contraband. But, accused Nos. 2 and 3 ran away, though, the Excise Party could arrest the 1^st accused along with the contraband. Therefore, in such a case, grant of anticipatory bail to the petitioner/ 2^nd accused, who has specific role in this occurance and who is the owner of the motor bike, will stall the investigation.

7. On analysis of the available materials, it could be noticed that, the Excise Party noted presence of accused Nos. 1 to 3 along with the motor bike and when they attempted to arrest all the persons, accused Nos. 2 and 3 ran away and the Excise Party arrested accused No.1 and thereafter, accused No. 3 also. It is reported further that the petitioner is a person having criminal antecedents and he has involvement in NDPS Act Crime No.14/2021 of Ettumanoor Excise Range Office. Since, the petitioner’s presence at the place of occurrence is specifically asserted by the prosecution and the motor bike used to carry the contraband is one belonged to the petitioner, grant of anticipatory bail to the petitioner/ 2^nd accused would defeat the purpose of investigation. Therefore, the petition