Full Judgment
B.A.No.6334-2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE SHIRCY V. FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942 Bail Appl..No.6334 OF 2020 CRIME NO.28/2019 OF Thrissur Excise Range Office , Thrissur PETITIONER RAHUL C.J AGED 24 YEARS S/O JAYAN, CHEMBAKAPILLY HOUSE, CHIYYARAM VILLAGE, THRISSUR, KOORKANCHERY P.O. BY ADV. SRI.VINAY RAMDAS RESPONDENT/STATE OF KERALA STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR OF THRISSUR EXCISE RANGE OFFICE IN THRISSUR DISTRICT THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA R1 BY PUBLIC PROSECUTOR SYAMJIRAM OTHER PRESENT: THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: B.A.No.6334-2020 2
ORDER
Application for bail under Section 439 of the Cr.P.C.
2. The petitioner is the second accused in Crime No.28/2019 of
Excise Range Office, Thrissur registered for the offences punishable under Sections 20 b(ii) (C), 32 (B)(a) and 29 of the Narcotic Drugs and Psychotropic Substances Act ('NDPS Act' for short).
3. The petitioner has been in custody since 5.10.2019.
4. The prosecution case is that on 5.10.2019 this petitioner
along with the first accused were found in possession of 226.130 kgs of Ganga, concealed in two vehicles and in a building. It was stocked for the purpose of sale in contravention of the provisions of the NDPS Act and thereby committed the aforesaid offences .
5. This is the second application filed by this petitioner for his release on bail. His first application was dismissed by this Court on 3.3.2020.
6. The petitioner's case is that on 25.3.2020 the Public
Prosecutor has filed an application before the Session Court, Thrissur under sub section (4) of Section 36 of the NDPS Act for extension of the period of detention of the petitioner beyond 180 days(Annexure A3). As per an order dated 31.3.2020 (Annexure A4) the learned Addl. B.A.No.6334-2020 3 Sessions Judge (in charge of Sessions Judge) has granted a further time of 90 days for investigation. Subsequently on 21.5.2020 again an application was filed by the Public Prosecutor requesting extension of the period of detention as sought for in the earlier CMP filed on 25.3.2020 as investigation could not be completed by the investigating agency(Annexure A5). By Annexure A6 order the learned Addl.Sessions Judge has granted a further time of 90 days, in addition to the period already granted in Crl.M.P No.1123/2020.
7. Thereafter, the petitioner has filed Crl.M.P.No.1370/2020 for release of the petitioner on bail. But by an order dated 17.7.2020 the learned Sessions Judge has dismissed the application.
8. It is pertinent to note that the petitioner by filing this
application under Section 439 of the Code of Criminal Procedure is in fact challenging the reports of the Public Prosecutor dated 25.3.2020 and 21.5.2020 (A3, A5) and the orders of the learned Additional Sessions Judge (in charge of Sessions Judge) dated 31.3.2020 (Crl.M.P No.1123/2020-A4) and the order dated 28.5.2020 (Crl.M.P.No.1148 of 2020-A6). If the petitioner is aggrieved by the said orders, he ought to have challenged the said orders under Section 482 of Cr.P.C and not by an application under Section 439 of Cr.P.C. Whether the public prosecutor has indicated the progress of investigation and specific reason for detention of the petitioner beyond B.A.No.6334-2020 4 the period of 180 days and whether orders of the Addl.Sessions Judge are sustainable or not on facts and in law are not the matters for consideration in a petition under Section 439 Code of Criminal Procedure. Here, this court is right now concerned with the plea of bail alone as the application is one filed under Section 439 of the Code of Criminal Procedure.
9. The learned counsel for the petitioner submitted that the
petitioner is totally innocent but he is undergoing undeserved incarceration for the last one year as the investigation is being delayed for no reason. But on verification with the Court concerned it is learnt that now the investigation of the case is over and the investigating agency has submitted the final report before the Sessions Court on 28.9.2020. This application is filed on 30.9.2020 after filing of the final report before the Sessions Court, may be without knowing the said fact, as if he is entitled for default bail.
9. In fact whether the petitioner was entitled for default bail was
a matter to be considered by the Sessions Judge and not by this Court. Default bail is always to be considered either by the Magistrate or by the Sessions Judge, as the case may be as final reports are being filed before the Magistrate Courts and Sessions Courts/Designated courts and not before this Court. It is significant to note that the petitioner has not challenged the order of the learned B.A.No.6334-2020 5 Sessions Judge dated 17.7.2020 in Crl.M.P.No.1370/2020 before this Court in appropriate proceedings.
10. In view of the filing of the final report by the Investigating
Agency on 28.9.2020, this petition can be considered by this Court as there is substantial change to the circumstances of the case so as to have a fresh look into the matter. NDPS Act is a special enactment enacted with stringent provisions for control of operations relating to narcotic drugs and psychotropic substances. Of-course, the power to grant bail is subject to the stringent conditions mentioned in Section 37 of the NDPS Act. Here the co-accused had already been released on bail. But no steps have been taken by the investigating agency for cancellation of his bail. So also this petitioner has no criminal antecedents and he is aged only 24 years. He has been undergoing incarceration since the date of his arrest on 5.10.2019. It is fact that due to the out break of Covid-19 pandemic certain persons in the jail are affected with the same. Therefore this Court is of the opinion that it is not necessary to direct the petitioner to approach the Sessions court with a plea for bail in the changed circumstances. This petition is hereby allowed as we are faced with unusual circumstances. The petitioner shall be released on bail subject to the following conditions:
1.The petitioner shall be released on bail on execution of a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the court B.A.No.6334-2020 6 concerned.
2. He shall not commit any offence while on bail.
3. He shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court during trial of the case.
4. He shall fully co-operate with the trial of the case.
5. The petitioner shall surrender his original passport
before the court concerned. If he is not having a passport, he shall file an affidavit regarding the same before the court, within a week for his release on bail.
6. The petitioner shall not leave the state of Kerala without
prior permission of the court concerned. In case of violation of any of the above conditions, the learned Sessions Judge is empowered to cancel the bail in accordance with the law. Sd/- SHIRCY V JUDGE smm