Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 31ST DAY OF MAY 2023 / 10TH JYAISHTA, 1945 BAIL APPL. NO. 4079 OF 2023 CRIME NO.5/2020 OF ATTINGAL EXCISE CIRCLE OFFICE, THIRUVANANTHAPURAM AGAINST THE ORDER/JUDGMENT IN SC 82/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THIRUVANANTHAPURAM / I ADDITIONAL MACT PETITIONER/ACCUSED NOS.1 AND 2: 1 ARJUN NATH AGED 29 YEARS S/O. PREM NATH, MUTHUVALATHU HOUSE, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT., PIN - 695306 2 AJIN MOHAN AGED 27 YEARS S/O. MOHANAN, M.C NIVAS, KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT., PIN - 695306 BY ADV NIREESH MATHEW RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY SMT.T.V.NEEMA, SR. PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 31ST DAY OF MAY 2023 / 10TH JYAISHTA, 1945 BAIL APPL. NO. 6339 OF 2022 AGAINST THE ORDER/JUDGMENT IN SC 82/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THIRUVANANTHAPURAM / I ADDITIONAL MACT Bail Appl. 2984/2022 OF HIGH COURT OF KERALA PETITIONER/3RD ACCUSED: GOKUL RAJ AGED 26 YEARS S/O. RAJAN, CHITHIRA HOUSE, NEAR GIRLS' HIGH SCHOOL, ATTINGAL, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT., PIN - 695101 BY ADV NIREESH MATHEW RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY SMT.T.V.NEEMA, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
COMMON ORDER
Dated this the 31st day of May, 2023 Regular bail plea moved by accused Nos.1 to 3 in crime No.5/2020 of Attingal Excise Circle Office, Thiruvananthapuram is under consideration in these petitions, filed under Section 439 of the Code of Criminal Procedure.
2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. Perused the relevant documents form part of the case diary placed by the learned Public Prosecutor.
3. The prosecution case is that accused herein jointly
transported 40 kg of ganja, for the purpose of sale, and they stored the same in building No.V/933 of Kadakkavoor Grama Panchayat at Mamba Restaurant Cafe near Pulimoodu Junction, Attingal on 22.08.2020. Consequent to detection, accused Nos.1 to 3 were arrested and the contraband was seized from the accused along with vehicles and cash counting machine. On this premise, the prosecution alleges commission of offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act', for short).
4. The learned counsel for the petitioners, while
pressing for regular bail for the petitioners, would submit that the petitioners have been in custody from 22.08.2020 involving 40 kg of ganja. It is also submitted that the petitioners have no criminal antecedents and the case at hand would fall similar to the facts dealt by this Court in the decision reported in Fasil v. State of Kerala and Anr [2023 (3) KHC 2012].
5. The learned Public Prosecutor conceded that no criminal antecedents were reported in so far as the petitioners are concerned.
6. In this matter, in fact, commercial quantity of
contraband was seized from the petitioners and the petitioners are first-time offenders. Since the petitioners have been in custody from 22.08.2020, for the last three years, their case should have been analysed, in view of the ratio held in Fasil's case (Supra). In the said case, this Court enunciated following principles to dilute the rider under Section 37 of the NDPS Act.
“10. Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act:
(1) the accused should not have any criminal antecedents.
(2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case).
(3) the impossibility of trial within a reasonable
time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after
satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”
7. Going by the facts of the present case, the ratio
held in Fasil's case (Supra) would squarely apply in this case.
Therefore, I am of the view that the petitioners can be enlarged on bail satisfying the rigour under Section 37 of the NDPS Act. Accordingly, these petitions stand allowed and the petitioners can be enlarged on bail on the following conditions:
i. Accused/petitioners shall be released on bail on their executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) each with two solvent sureties each for the like amount to the satisfaction of the Special Court concerned. ii. Accused/petitioners shall not intimidate the witnesses or tamper with evidence. They shall co-operate with the investigation and shall be available for trial. They shall visit the
Investigating Officer on every Monday in between 9 a.m and 12 noon for a period of two months and also appear before the Investigating Officer as and when directed. iii. Accused/petitioners shall not leave India without prior permission of the Special Court. iv. Accused/petitioners shall surrender their passports, if any, within 7 days from the date of their release, before the trial court. If they have no passports, they shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter. v. Accused/petitioners shall not involve or indulge in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted.
Sd/- A. BADHARUDEEN JUDGE nkr