Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945 BAIL APPL. NO. 5828 OF 2023 AGAINST THE ORDER/JUDGMENT Bail Appl. 8082/2022 OF HIGH COURT OF KERALA CRIME NO.864/2022 OF PANDALAM POLICE STATION, PATHANAMTHITTA PETITIONER/ACCUSED NO.7: RAMEEZ MANOJ, AGED 23 YEARS, S/O MANOJ V. SALAM, THENAMAKKAL HOUSE, NEAR FIRE STATION, VATTAPPARA, KANJIRAPPALLY P O, KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT, PIN - 686510. BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031. PUBLIC PROSECUTOR SRI M P PRASANTH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.08.2023, THE COURT ON 25.08.2023 DELIVERED THE FOLLOWING:
A. BADHARUDEEN, J.
================================ B.A.No.5828 of 2023 ================================ Dated this the 25th day of August, 2023
ORDER
This is the second application for regular bail filed under Section 439 of
the Code of Criminal Procedure by the 7th accused in crime No.864/2022 of Pandalam police station, where accused alleged to have committed offences punishable under Sections 22(c), 60(3), 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience).
2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
3. I have perused the case diary along with relevant materials placed by the learned Public Prosecutor as well as the learned counsel for the petitioner.
4. Precisely, the prosecution case is that accused herein hatched
conspiracy and thereafter accused Nos. 1 to 5 have kept 151.490 gm of MDMA at River Walk Hotel, near Manikandan Althara Junction, Pandalam Municipality and the Pandalam police seized the contraband and arrested accused Nos.1 to 5. The further allegation is that for the purchase of contraband, accused Nos.1, 4 and 5 went to Bangalore and met accused No.6 and credited money in the account maintained by 7 th and 8th accused, who are intermediaries for buying MDMA. Accordingly, MDMA was purchased and possessed.
5. The present bail application is at the instance of the 7 th accused.
According to the learned counsel for the petitioner, there is anomaly in the prosecution case starting from the registration of FIR and inclusion of the present petitioner as an accused. The learned counsel also pointed out delay in registering the FIR after detection of the crime at 15.55 hours on 30.07.2022 and registration of crime at 03.25 hours on 31.07.2022. It is submitted further that since nothing recovered from the conscious possession of the 7 th accused and the prosecution relies on confession statement and bank statements as the basis to implicate the 7th accused. In such a case, the rigour under Section 37 of the NDPS Act would not apply. Therefore, the petitioner, who has been in custody for the last one year, deserves bail. He also would submit that there may be bank transaction between the 7th accused and other accused prior to the detection, but the same was for the purpose of sale of vehicle and therefore, the petitioner has no involvement.
6. It is argued by the learned counsel for the petitioner further that
even though his earlier bail application was dismissed on the basis of the rider under Section 37 of the NDPS Act, as per the ratio in [2023 (3) KHC 212], Fasil v. State of Kerala, this Court diluted the rigour under Section 37 of the NDPS Act in case of a person, who is in custody for one year and having no criminal antecedents and further the trial in this case could not be materialised within a period of six months. Therefore, applying the said ratio, the petitioner is liable to be released on bail.
7. Whereas the learned Public Prosecutor zealously opposed bail and
pointed out the involvement of the 7th accused in this crime in detail. In the report, it has been stated that 7th accused is the person who had been studying for PG course in Bangalore and a close friend of accused Nos.6 and 8 arranged MDMA which was recovered from accused Nos. 1 to 5. But it is submitted that the petitioner has no criminal antecedents and he was arrested on 19.08.2023.
8. On evaluation of the relevant records, it is discernible that during
investigation, it was found that the 2 nd accused while studying for PG course in Bangalore maintained friendly relationship with accused Nos.6, 8 and 9 and worked as a mediator in the transport of MDMA. On scrutiny of the bank statements maintained by the 7th accused at Federal Bank, Kanjirappally, it was found by the Investigating Officer that in between 01.01.2022 to 10.08.2022, Rs.37,21,674/- deposited in the account of the 7th accused and out of which, Rs.37,13,992/- was withdrawn. The further allegation is that as on 28.07.2022 when the 2nd accused went to Bangalore to purchase MDMA, Rs.35,000/- was deposited by the 2nd accused in the name of the 7th accused. Similarly, the first accused also deposited Rs.35,000/- on 29.07.2022; 8th accused deposited Rs.55,000/- (Rs.24,000 + 31,000) as on 29.07.2022.
9. In Fazil’s case this Court held as under:
“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.”
10. To be on the crux of the matter, since the petitioner has been in
custody from 19.08.2022 and he is a person having no criminal antecedents and the trial even not started, applying the ratio in Fasil’s case (supra) the petitioner can be enlarged on bail.
11. Therefore, this petition stands allowed. The petitioner is enlarged on bail on conditions: i. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Special court concerned.
ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial. iii. The petitioner shall not leave India without the permission of the Special court. iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer. v. The petitioner shall surrender his passport before the Special Court on
the date of execution of the bail bond or within ten days therefrom, with special permission of the Special Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time. vi. The petitioner shall not involve 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 shall be a reason to cancel the bail hereby granted.
Sd/- (A. BADHARUDEEN, JUDGE) rtr/ APPENDIX OF BAIL APPL. 5828/2023 PETITIONER'S ANNEXURES Annexure I A TRUE COPY OF THE FIR IN CRIME NO 864/2022 OF PANDALAM POLICE STATION, PATHANAMTHITTA DATED 31.07.2022 IS PRODUCED HEREWITH AND MAY BE MARKED AS ANNEXURE-I. Annexure II ORDER DATED 27-02-2023 IN BAIL APPL.8082/2022 ON HIGH COURT Annexure III A COPY OF THE ORDER IN BA NO 7756/2022 DATED 23.12.2022 IS PRODUCED HEREWITH AND MAY BE MARKED AS ANNEXURE III.