Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 27TH DAY OF APRIL 2023 / 7TH VAISAKHA, 1945 BAIL APPL. NO. 2340 OF 2023 AGAINST THE ORDER/JUDGMENTSC 493/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, KASARAGOD / II ADDITIONAL MACT, KASARAGODE Bail Appl. 8397/2022 OF HIGH COURT OF KERALA CRIME NO.196/2021 OF VIDYANAGAR POLICESTATION, KASARAGOD PETITIONER/ACCUSED NO.2: ABDUL SAMAD,AGED 28 YEARS S/O ABOOBACKER, BILAL NAGAR, ULIYATHADUKKA, KASARGOD TALUK, KASARGOD DISTRICT BY ADV M.H.HANIS
RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682031 OTHER PRESENT: SR.PP - C.K.SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BA No.2340 of 2023 2
VIJU ABRAHAM, J.
................................................................. B.A. No.2340 of 2023 ................................................................. Dated this the 27th day of April, 2023
ORDER
This is an application for regular bail.
2. Petitioner is the 2nd accused in Crime No.196 of 2021 of
Vidyanagar Police Station, Kasaragod, now pending as S.C.No. 493 of 2021 before the Sessions Court, Kasaragod, alleging the commission of offence punishable under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”).
3. The prosecution allegation is that accused were found carrying 25 kgs of ganja for sale in a scooter bearing registration No. KL 14-W 5963 and thus committed the offence.
4. Petitioner submits that he has been falsely implicated in
the abovesaid crime and is in custody from 25.05.2021 onwards. Nothing is seized from the possession of the petitioner. The investigation is over and charge sheet is already laid as Annexure A. Petitioner further contends that there is no allegation of joint liability or conspiracy or abetment alleged in Annexure A final report. Thus Section 29 of the NDPS Act is not attracted and the same is not incorporated also. It is also contended that mandatory provisions of
BA No.2340 of 2023 3
the NDPS Act regarding arrest and seizure is not complied with especially Section 57 of the NDPS Act in as much as the arrest and seizure ought to have been reported to the immediate superior officer within 48 hours. Petitioner submits that the quantity alleged to have been seized is 21 kgs of ganja which is just little more than the commercial quantity and since Section 29 of the NDPS Act is not incorporated, the quantity seized from the petitioner can only be treated as an intermediate quantity and to substantiate the contention, the petitioner relies on the Division Bench judgment of this court in Muthu Kumar and Others v. Station House Officer, 2008 (2) KHC
592. Petitioner also submits that there is a long delay in getting the
FSL report and the trial could not commence only for the reason that the FSL report is made available. Since the petitioner is in custody from 25.05.2021 and the trial could not start only for the latches from the part of the prosecution in not producing the FSL report before the court, the petitioner submits that he is entitled to bail on the ground of undue delay in the trial.
5. The learned Public Prosecutor opposed the application for
bail mainly contending that commercial quantity of contraband was seized from the possession of the petitioner and the 1 st accused and therefore though Section 29 is not incorporated, the petitioner is liable for the whole quantity of contraband seized. The arrest and seizure BA No.2340 of 2023 4
was informed to the Superior Officer within time but it is true that the said intimation given is not produced along with the charge sheet due to an inadvertent mistake. Learned Public Prosecutor submits that though there was some delay in submitting the FSL report before the trial court concerned, the same has been produced before the trial
court as is seen from the communication dated 31.01.2023. The petitioner has other criminal antecedents also.
6. The only impediment in not starting the trial is for want of
the FSL report, which is now reported to have been forwarded to the court concerned. The report from the trial court says that after receipt of the chemical analysis report the trial of the case could be completed within five months. A perusal of Annexure-B order passed by the Sessions Court would show that the petitioner is involved in 8 other criminal cases and one of which is under Section 27(b) of the NDPS Act.
Considering the facts and circumstances of the case, I am
not inclined to grant bail to the petitioner. Since the FSL report is now made available to the trial court, there will be a direction to the trial court concerned to expedite the trial of the case and complete the same at the earliest, at any rate, within an outer limit of five months from the date of receipt of a copy of this order. It is made clear that if there is any delay in the completion of the trial as directed above,
BA No.2340 of 2023 5 petitioner is free to move this Court or the trial court concerned seeking bail. Sd/- VIJU ABRAHAM JUDGE cks