Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM SATURDAY, THE 30TH DAY OF SEPTEMBER 2023 / 8TH ASWINA, 1945 BAIL APPL. NO. 8157 OF 2023 CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM AGAINST THE ORDER Bail Appl. 884/2022 OF HIGH COURT OF KERALA PETITIONER/ACCUSED NO.8: DHEEPESH,AGED 24 YEARS RESIDING AT DOWDEL HOUSE, KARAPPARAMBU VENGERI VILLAGE, KOZHIKODE TALUK, KARUVASSERY P.O. KOZHIKODE - 673010 BY ADVS. SREENATH VIJAYARAGHAVAN AKHILA C. RESPONDENTS/STATE AND INVESTIGATING OFFICER: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 2 ASSISTANT COMMISSIONER EXCISE CRIME BRANCH, ERNAKULAM - 682031 OTHER PRESENT: PP - M.C.ASHI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BA No.8157 of 2023 2
VIJU ABRAHAM, J.
................................................................. B.A. No.8157 of 2023 ................................................................. Dated this the 30th day of September, 2023
ORDER
This is an application for regular bail.
2. Petitioner is arrayed as the 8th accused in Crime No.36 of
2021 of Excise Range Office, Ernakulam registered alleging commission of offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”).
3. The prosecution allegation is that on 19.08.2021 at about
1.40 a.m., the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam acting on a tip-off conducted a search in Marhaba Apartment, Vazhakala, and seized 83.896 grams of MDMA illegally kept for sale in an apartment in the 1 st floor of C block and arrested accused nos. 1 to 5. Accused nos.1 to 5 revealed that the contraband was brought for with the aid of other accused.
4. Petitioner submits that he has absolutely no connection with the alleged crime and no contraband was seized from his
BA No.8157 of 2023 3 possession. Petitioner is implicated as an accused only on the basis of the confession statement of the co-accused which is inadmissible going by the judgment of the Apex Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. Even going by the prosecution allegation the role attributed to the petitioner is that he had financial transactions with other accused. Petitioner submits that he was arrested on 20.09.2021 and is in custody since then. Though he moved an application for bail earlier, the same was dismissed as per Annexure-A1 order. Petitioner further submits that in the case of the 15th accused against whom also similar allegation of monetary transactions with the other accused was alleged, he was granted bail by the Apex Court as per Annexure-A2 order. He would further submit that accused nos.7, 9,10, 13, 14, 16, 20 and 21 were also granted bail by this Court. Though another crime was registered subsequent to his apprehension in the present crime, no final report has been filed and thereupon the petitioner was granted Annexure-A4 statutory bail in the said crime. It is submitted that the petitioner is in custody from 20.09.2021 onwards and the trial has not commenced despite specific directions issued by this court in this regard.
5. Learned Public Prosecutor opposed the application for
bail mainly contending that though no contraband was seized from the possession of the petitioner, the allegation against the petitioner is that he has funded the commission of the alleged crime and the
BA No.8157 of 2023 4 investigation revealed that there was huge transactions in the account maintained by the petitioner and he had monetary transactions with accused nos.1, 5, 16 and 17 and further that he had mobile contacts with accused nos.5, 10, 17, 18 and 19. Learned Public prosecutor would submit that all these would reveal the involvement of the petitioner in the alleged crime.
6. Admittedly petitioner is in custody from 20.09.2021
onwards. The trial of the case has not yet started. In the other crime registered against him after his apprehension in the present crime no final report has been filed and the petitioner was granted statutory bail. It is seen that accused nos.7, 9, 10, 13, 14, 15, 16, 20 and 21 have already been granted bail. The Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi) [2023 SCC online SC 352] held that grant of bail on the ground of undue delay in trial cannot be set to be fettered by Section 37 of the 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 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.
Taking all these aspects into consideration and specifically the period of detention undergone by the petitioner, I am
BA No.8157 of 2023 5 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.36 of 2021 of Excise Range Office, Ernakulam on all second Saturdays at 11.00 a.m. until completion of the trial and thereafter as and when required by the investigating officer.
(iii) He shall not leave the State of Kerala without obtaining prior permission from the jurisdictional Court.
(iv) He shall surrender his passport before the jurisdictional
Court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail;
(v) He shall not attempt to interfere with the investigation or to influence any witness in the above said crime;
(vi) 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. 36 of 2021 of Excise Range Office, Ernakulam BA No.8157 of 2023 6 may file an application before the jurisdictional court, for cancellation of bail. Sd/- VIJU ABRAHAM JUDGE cks