Abins vs State Of Kerala

A. Badharudeen, J

This is the second application for regular bail filed by the 4th accused in crime No.40/2022 of Muvattupuzha Excise Range.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the case diary along with detailed report submitted by the Investigating Officer.

The prosecution allegation is that, accused Nos. 1 to 4 jointly transported 79.200 kilogram of Ganja, and the same was detected while they were transporting the contraband in a lorry bearing registration No.KL-38-E-7340, against the prohibitions contained in the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act') and the same was taken into custody by the Excise party at 7.15 am on 10.09.2022. Accordingly, accused Nos. 1 to 4 were arrested and crime alleging commission of offences punishable under Section 20(b)(ii)(c), 29 and 60(3) of the NDPS Act was registered and is on investigation.

The learned counsel for the petitioner would submit that, the petitioner is innocent. The petitioner has been in custody from 10.09.2022 onwards and he has completed 13 months of incarceration. He is a first time offender. Therefore, following the ratio in [2023 (3) KHC 212], Fasil v. State of Kerala, he is liable to be released on bail.

Whereas the learned Public Prosecutor strongly opposed the grant of bail to the petitioner on the submission that, 79.200 kilogram of Ganja was seized from the possession of accused Nos. 1 to 4. Since the contraband is commercial quantity, this Court must satisfy the twin conditions while granting bail to the accused, who alleged to have possessed commercial quantity of contraband. Therefore, the rigour under Section 37 of the NDPS Act would squarely apply in the facts of this case. It is also submitted by the learned Public Prosecutor that though the petitioner has no criminal antecedents, the quantity of ganja involved is 79.200 kilogram and in such a case, the ratio of Fasil’s case (supra) by itself is not a ground to grant regular bail to the petitioner.

In this matter, earlier, the bail plea at the instance of the petitioner/4th accused was dismissed holding that the rider under Section 37 could not be diluted. But later in Fasil’s case (supra), this Court laid down certain parameters to dilute the rider under Section 37 of the NDPS Act and the same are 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.”

In the instant case, since it is not in dispute that the petitioner is a first time offender and he has completed more than one year in custody and trial even not started as of now, applying the ratio in Fasil’s case (supra) the petitioner can be enlarged on bail.

Therefore, this petition stands allowed. The petitioner is enlarged on bail on the following 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.