Abdul Sakeer B.S vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.04/2020 of the Kumbala Excise Range Office, Kasaragod, which is registered against him for allegedly committing the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested and remanded to judicial custody on 11.05.2022.

The crux of the prosecution case is that: on 12.02.2020, at around 19.30 hours, while the Detecting Officer and party were conducting the patrolling duty, they intercepted a stage carriage bus bearing registration No. KA-19F-3435, which was enroute from Manglore to Kasaragod, and on conducting a search of the vehicle, they found 22 kg of ganja in the bag of the accused. Thus, the accused has committed the above offences.

Heard; Sri. Shinto Thomas, the learned counsel appearing for the petitioner and Smt. Neema. T.V, the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner’s involvement in the case. In any given case, the petitioner has been in judicial custody for the last two years and two months, the investigation in the case is complete, and the final report has been laid. However, the trial in the case has not commenced till date. Hence, the petitioner is entitled to the benefit of the law laid down by the Hon'ble Supreme Court in Ankur Chaudhary v. State of Madhya Pradesh [2024 KHC 8248] and Javed Gulam Nabi Shaikh v. State of Maharashtra and Another (Crl.Appeal No. 2787/2024). He prayed that the petitioner may be enlarged on bail.

The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to establish the petitioner’s involvement in the crime. The petitioner was found in conscious possession of a commercial quantity of contraband article. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts of the case. The petitioner has not diluted the rigour contemplated under the NDPS Act. If the petitioner is let off on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed.

When the application came up for consideration on 01.07.2024, this Court had called for a report from the Trial Court to ascertain the status and reasonable time period required to consider and dispose of S.C.No.625/2022.

Pursuant  to  the  said  order,  the  learned Additional Sessions Judge, Kasaragod, by communication dated 02.07.2024, has informed this Court that S.C.No.625/2022 stands posted to 08.07.2024 and summons has been issued to Cws 1 and 2. There are 16 witnesses in the case. Considering the nature of the crime, the Trial Court requires at least six months to dispose of S.C.No.625/2022.

The prosecution allegation against the petitioner is that he was found in conscious possession of 22 kg of ganja, which was seized while he was travelling in a stage carriage bus. The fact remains that the petitioner has been in judicial custody since 11.05.2022 and the trial in S.C. No. 625/2022 has not yet commenced.

In Ankur Chaudhary’s case (supra), the Hon'ble Supreme Court, taking into consideration the fact that the petitioner in the said case was in judicial custody for nearly two years for allegedly committing an offence under the NDPS Act and that trial had not commenced, has held that the prolonged incarceration of an accused militates against his precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, whether conditional liberty overrides the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered. Accordingly, the Hon'ble Supreme Court enlarged the petitioner in the said case on bail.

On an evaluation of the facts, the rival submissions made across the Bar, and the materials placed on record, I am of the definite view that the petitioner in the case on hand is equally placed with Ankur Chaudhary, since the petitioner is also in judicial custody for the past two years and two months and the trial in the case has not commenced, and further, the Trial Judge has observed that the case can be disposed of only within six months. Therefore, the petitioner would have to remain in further custody until  the  conclusion of  the  trial  in  S.C.  No. 625/2022, which is still uncertain. In view of the above background, I am of the firm view that the petitioner is entitled to be released on bail, in the peculiar facts and circumstances of this case.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every third Saturday between 9.00 am and 11.00 am till the conclusion of the trial in S.C.No.625/2022. He shall also appear before the Investigating Officer as and when required;

(ii)The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.

(vii)Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].