Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, BAIL APPL. NO. 861 OF 2024 CRIME NO.36/2023 OF Kuthiathode Excise Circle Office, Alappuzha PETITIONER/S: BAY JAN HAQUE, AGED 29 YEARS S/O MAHIBUL HAQUE JONA DESAM, CHANGAMARA VILLAGE, SISSIHORGAON, DEMAJI DISTRICT, NOW RESIDING AT SIYAD'S HOUSE, PANAVALLY VILLAGE, CHERTHALA, PIN - BY ADV JOHN JUDE ISSAC
RESPONDENT/S: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: PP Smt Shynimole V.O THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.S.DIAS,J ====================== ----------------------------------- Dated this the 29th day of February, 2024
ORDER
The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.36/2023 of the Kuthiathode Excise Circle Office, Alappuzha, registered against him, for allegedly committing the offence punishable under Sections 20(b) (ii)
(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 26.9.2023.
2. The prosecution case, in brief, is that: on 26.9.2023, at about 14.35 hours, the accused was found in
possession of 2.4 kgs of dried ganja at his house in Panavally Village in violation of the provisions of the Act. Thus, the accused has committed the above offence.
3. Heard; Sri. John Jude Issac, the learned counsel appearing for the petitioner and Smt. Shynimol V.O, the learned Public Prosecutor appearing for the respondents.
4. The learned counsel for the petitioner submitted
that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. At any rate, the petitioner has been in judicial custody since 26.9.2023, the investigation in the case is complete, the recovery has been effected and the petitioner does not have criminal antecedents. Therefore, the petitioner’s further detention is not necessary. Hence, the application may be allowed.
5. The learned Public Prosecutor opposed the application. She contended that there are sufficient materials to substantiate the involvement of the accused in the above crime. She also submitted that the petitioner is
a person who does not have any roots in Kerala. If the petitioner is released on bail, he would certainly flee from justice. Hence, the application may be dismissed.
6. The prosecution allegation is that the petitioner was found in possession of 2.4 kgs of dried ganja , which was seized by the Detecting Officer from the residential
building of the petitioner. Indisputably, the said contraband article is of an intermediate quantity. The petitioner, admittedly, does not have any criminal
antecedent. Merely for the reason that the petitioner does not have any roots in the State of Kerala, the same cannot be a ground to deny bail to the petitioner in view of the principles laid down by the Hon’ble Supreme Court in Hussainara Khatoon vs. Home Secretary, State of Bihar [ 1980 (1) SCC 98 ].
7. On an anxious consideration of the facts,
materials placed on record , rival submissions made across the Bar, particularly taking note of the fact that the contraband that was allegedly seized from the petitioner is of an intermediate quantity, that the petitioner does not have any criminal antecedents, that the petitioner has been in judicial custody since 26.9.2023, that the investigation in the case is complete and that the final report has been laid, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions.
In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:
(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the
conclusion of the proceedings. He shall also appear before the
Investigating Officer as and when required;
(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;
(iii) The petitioner shall not commit any offence while he is on bail;
(iv) The petitioner shall surrender his passport, if any,
before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;
(v) The petitioner shall furnish his present address as well as his permanent address and mobile phone number to the court below and the Investigating Officer;
(vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Alappuzha, without the permission of the jurisdictional Court.
(vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. sd/- C.S.DIAS, JUDGE sks/29.2.2024