Abeesh vs State Of Kerala

P.V.Kunhikrishnan, J

This Bail Application is filed under Section 439 of Criminal Procedure Code .

The petitioners are accused numbers 7 and 8 in SC No.995 of 2022 on the file of the Additional District and Sessions Court-I, North Paravur. Crime No.248/2022 of Angamaly Police Station, Ernakulam District has been registered against the petitioners and others alleging offences punishable under Sections 20 (b) (ii) (B), 20 (b) (ii) (C), 8(c), 27A and 29 of NDPS Act.

The prosecution case in brief is as follows: In the intervening night between 05/03/2022 and 06/03/2022, 11.130 kgs of ganja and 1.525 kgs of hashish oil were recovered from the car with registration No. KL-07-AV-2050 belonging to the first accused parked at the parking area of Federal City Flat at old bridge road in Karukutty village, by the S.I of police Angamaly and his team consequent to the secret information received by him. The contraband items were recovered and the first accused was arrested by the S.I of police Angamaly. Upon further investigation it was revealed that accused Nos. 1 to 11 had entered into a criminal conspiracy for importing huge quantities of ganja, hashish oil etc., from Odisha to Kerala. As part of the above conspiracy, the accused 1, 2 and 9 purchased 60 kgs of ganja and 4 kgs of hashish oil from the 6th accused on 23/02/2022. The above contraband items were brought to Kerala by accused Nos. 1, 2 and 9 and sold to accused Nos.3, 4, 5 and 7. The 7th and 3rd accused had sold a portion of ganja purchased by them to his brother who is the 8th accused. The amount mobilised by accused Nos.3, 4, 5 and 7 by the sale of the above narcotic substance was transferred to the account of the first accused. The amount which the 8th accused obtained by the sale of the above contraband was transferred to the bank account of the 7th accused. The second accused also transferred profit share of the above illegal transactions to the 9th accused by way of several bank transactions. 11.130 kgs of ganja and 1.525 kgs of hashish oil recovered from the car of the first accused on 05/03/2022, which was purchased from the 6th accused, a native of Odisha. Thus the accused are alleged to have committed the offences punishable under sections 20(b)(ii) B, 20(b)(ii) C, 8(C), 27(A) and 29 of NDPS Act. It is also submitted that the 1st petitioner was arrested on 07.04.2022 and he was remanded to judicial custody. The 2nd petitioner herein was arrested on 24.03.2022 and he was remanded to judicial custody. It is also submitted that the final report in the above case was laid on 03.08.2022.

Heard the counsel for the petitioner and the Public Prosecutor. The bail application of the petitioners were dismissed by this Court earlier as evident by Annexures - 4 and 5. Now the petitioners submitted that the bail application of the 10th accused was allowed by this Court by another learned Single Judge as per Annexure – 6 stating that, there is no criminal antecedents against the 10th accused. It is submitted by the counsel appearing for the petitioners that there is no criminal antecedents to the petitioners herein also and the involvement of the petitioners are also similar to the 10th accused. Hence the petitioners may be released on bail, is the submission. The learned Public Prosecutor after getting instructions submitted that there is no criminal antecedents. But the Public Prosecutor opposed the bail application.

This Court considered the contentions of the petitioners and the Public Prosecutor. This Court also perused Annexure - 6 order passed in B.A.No.2535/2023. It will be better to extract the relevant portion of Annexure - 6 order:

“6. The petitioner is in custody from 02.04.2022 and that final report is already filed. The petitioner has no other criminal antecedents. When the matter came up for consideration, I called for a report from the trial court concerned regarding the present stage of the case and within what time the trial of the case could be completed and the trial court reported that they are still awaiting the report of examination from the Forensic Science Laboratory in respect of the mobile phone seized. Since the FSL report is not yet received, there is no possibility of completion of trial within a reasonable time. The Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine 352 while considering grant of bail in NDPS matters have held that a plain and literal interpretation of the conditions under Section 37 would effectively exclude the grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well and that the grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the Act. In Fasal v. State of Kerala and another, 2023 (3) KHC 212, this court have fixed certain parameters for grant of bail in cases where rigor of Section 37 is applicable. Admittedly, the petitioner has no other criminal antecedents and has been in custody for more than a year and further that due to non availability of FSL report, the trial of the case will not be completed in the near future. Considering the facts and circumstances of the case, I am inclined to grant bail to the petitioner but considering the seriousness of the allegation, the same shall only be on stringent conditions. ”

The  petitioners  are  also  similarly  situated persons like the 10th accused. In such circumstances, it will be injustice, if the petitioners alone are not released on bail. But I make it clear that, this order is applicable only to the petitioners herein and if any bail application is filed by other accused, that will be independently considered based on their involvement in the case. Therefore, this bail application can be allowed on stringent conditions.

Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:

Petitioners shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.

The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and 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 them from disclosing such facts to the Court or to any police officer.

Petitioners shall not leave India without permission of the jurisdictional Court.

Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected.

If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.

If Annexure-6 order is varied or cancelled, the Investigating officer is free to file appropriate application before the court below for cancelling this order and if such an application is received, the court below can pass appropriate orders.