O R D E R

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 2nd accused in Crime No.455/2023 registered by Shornur Police Station, Palakkad alleging the accused to have committed the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act”). The petitioner's arrest was recorded on

10.08.2023.

2. The prosecution case, in brief, is that: on

14.07.2023 the 1st accused was found in possession of 98.87 grams of MDMA and was arrested. After his arrest, he confessed that the contraband article has brought for the purpose of being supplied to the 2nd accused. Thus, the accused have committed the above offences.

3. Heard; Sri.P.Vijayabhanu, the learned Senior Counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the respondent.

4. The learned Senior Counsel for the petitioner strenuously argued that the petitioner has been falsely implicated in the crime. The present crime is an aftermath of the compliant that the petitioner had filed against the Investigating Officer for the harassment that was meted out on him while he was arrested in Crime No.435/2023. It was submitted that the petitioner was initially arrested on 08.07.2023 in Crime No.435/2023. When he was produced before the jurisdictional Magistrate, he had given a written complaint regarding the harassment. Immediately, the petitioner was again arrested in Crime No.418/2023 by the Pattambi Police, alleging that certain contraband articles were seized from the petitioner. It is thereafter that the present crime was registered, on the alleged confession made by the 1st accused in the present crime. Since, the petitioner was in judicial custody, by no stretch of imagination can it be alleged that the contraband article was brought for the petitioner. Hence, the application may be allowed.

5. The learned Public Prosecutor vehemently opposed the application. She contended that, in the investigation, it has been unraveled that there have been bank transactions between the petitioner and the 1st accused to the tune of Rs.40,000/- (Rupees Forty thousand only), which was transferred from the bank account of the petitioner to the 1st accused. There are also several whatsapp communications between the petitioner and the 1st accused. Infact, the 1st accused had purchased the article from a Nigerien lady from Bangalore as instructed by the petitioner. Moreover, the petitioner has criminal antecedents. There is every likelihood of the petitioner committing a similar offence, if he is let off on bail. The rigour under Section 37 of the Act may not be diluted.

Hence, the application may be dismissed.

6. The prosecution case is that the 1st accused had confessed that he had brought 98.87 grams of MDMA for the purpose of being supplied to the petitioner. At that time, the petitioner was already in judicial custody in connection with Crime Nos.435/2023 and 418/2023. The petitioner's arrest was recorded in the present case on the basis of the confession made by the 1st accused on 10.08.2023. The investigation, prima facie, reveals that the petitioner had transaction with the 1st accused.

7. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows:

“37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 (ii) where the Public Prosecutor opposes the application