Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 8TH DAY OF JANUARY 2024 / 18TH POUSHA, 1945 BAIL APPL. NO. 10960 OF 2023 CRIME NO.352/2022 OF Kuruppampady Police Station, Ernakulam AGAINST THE ORDER in Bail Appl. 5289/2022 OF HIGH COURT OF KERALA PETITIONER/5TH ACCUSED: HARRIS, AGED 32 YEARS S/O ASHRAF, VALIYAPARAMBIL HOUSE, THATTAMPADI PUTHUKADU BHAGOM, KARIMALLUR KARA, KARIMALLUR VILLAGE, ERNAKULAM, PIN - 683511 BY ADVS. A.RAJASIMHAN VYKHARI.K.U
RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: PP - DEEPA NARAYANAN THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BA No.10960 of 2023 2
VIJU ABRAHAM, J.
................................................................. B.A. No.10960 of 2023 ................................................................. Dated this the 8th day of January, 2024
ORDER
This is an application for regular bail.
2. Petitioner is arrayed as accused No. 5 in Crime No. 352 of 2022 of
Kurruppampady Police Station, Ernakulam registered alleging offences punishable under Section 8(c) read with Sections 20(b)(ii)C, 29 and 27A of the Narcotic Drugs And Psychotropic Substances Act, 1985.
3. Prosecution allegation is that the 1st accused had transported
248.165 Kg of dry ganja in a tanker lorry bearing registration No. TN- 52/A-9200 and the same was intercepted on 15-04-2022 at 2:55 P.M. near Eravichira Temple, Iringol Kara, Rayamangalam Village on the Aluva - Munnar road. The 1st accused was arrested, and the contraband article along with the tanker lorry was taken into custody.
4. Petitioner submits that he has been arrayed as an accused solely
based on the confession statement of accused 1 and 2 on the allegation that they had conspired and financed for the purchase and transportation of the contraband from Orissa to Kerala. Petitioner further submits that even going by the final report filed, the allegation against him is that he had telephonic contact with other accused and that he has transferred
BA No.10960 of 2023 3
an amount of Rs.20,000/- on 05.04.2022 to the account of one Sabeer and the photo of the pay-in-slip was sent to the 2nd accused. Petitioner submits that he was arrested on 01.05.2022 and since then he is in custody. Petitioner further submits that he has no other criminal antecedents and he is in custody for long and that the trial of the case has not yet commenced.
5. Learned Public Prosecutor upon instruction submits that in the
investigation conducted it was found that petitioner had constant call contacts with other accused and that he has transferred an amount of Rs.20,000/- on 05.04.2022 to one Sabeer and that the photo of the pay- in-slip was sent to the 2 nd accused. Learned Public Prosecutor further submits that the petitioner has no other criminal antecedents.
6. A report was called for from the trial court concerned wherein it is reported that the trial has not yet started and the case was posted to 04.01.2024 for rescheduling the trial.
7. Admittedly the petitioner is in custody from 01.05.2022 onwards
and has no other criminal antecedents. The Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi) [2023 SCC online SC 352] has held that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act. The Apex Court in Rabi Prakash v. The State of Odisha, (SLP Crl. No. 4169 of 2023) has also reiterated that prolonged incarceration generally militates against
BA No.10960 of 2023 4 the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo under Section 37 of the NDPS Act. Considering the fact that the petitioner is in custody from
01.05.2022 onwards and has no other criminal antecedents, I am inclined to grant bail to the petitioner, but taking into consideration the seriousness of the allegation, the same shall only be on stringent conditions. In the result, the bail application is allowed and it is ordered that the petitioner shall be released on bail on the following stringent conditions:
(i) Petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court.
(ii) He shall appear before the investigating officer in Crime No.352 of 2022 of Kuruppampady Police Station, Ernakulam District on all second Saturdays at 11.00 a.m. till completion of the trial.
(iii) He shall appear before the trial court on all posting dates without fail, except specifically exempted by the court.
(iv) He shall not leave the State of Kerala without obtaining prior permission from the jurisdictional Court.
(v) He shall surrender his passport before the jurisdictional Court. If the petitioner does not have a passport, he shall execute an BA No.10960 of 2023 5 affidavit to that effect and file the same before the said court within seven days of release on bail;
(vi) He shall not attempt to interfere with the investigation or to influence any witness in the above said crime;
(vii) He shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating
officer in Crime No.352 of 2022 of Kuruppampady Police Station, Ernakulam District may file an application before the jurisdictional court, for cancellation of bail. Sd/- VIJU ABRAHAM JUDGE cks