Anoop vs State Of Kerala

Gopinath P. J

The petitioner is the 3rd accused in Crime No.5/2021 of Kattakada Police Station, Thiruvananthapuram alleging commission of offences under Sections 20 (b) (ii) (c), 8 (c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act). The matter is now pending as S.C No.677/2020.

The allegation against the petitioner is that on 01-10-2021 at about 12.45 p.m the petitioner along with accused Nos.1 and 2 were found in possession of 187 Kgs of Gunja and thereby the petitioner committed the offences alleged against him.

The learned counsel appearing for the petitioner would submit that the petitioner was a Driver engaged by the other accused in the case and he had absolutely no connection with the alleged contraband in the vehicle. It is submitted that the petitioner was totally unaware that the contraband was carried in the car in question and there was absolutely no recovery from the possession of the petitioner.

The learned Public Prosecutor opposes the grant of bail. He submits that the earlier bail application of the petitioner were dismissed and there are no change of circumstances which would entitle the petitioner to bail. Reference is made in this regard to Annexures-A2 and A3 orders of this court in B.A. No.1121/2022 and 2729/2022. It is submitted that this court while rejecting the bail application of the petitioner on an earlier occasion this court referred to the judgment of the Supreme Court in Union of India through Narcotics Control Bureau, Locknow v. Mohammed Nawaz Khan; 2021 KHC 6503 to hold that that even if it is accepted that there was no recovery from the possession of the petitioner, the provisions and rigor of Section 37 of the NDPS Act will continue to operate against the petitioner. The learned Public Prosecutor also states that nearly 59 Kgs out of the total contraband was recovered from the house of the 4th accused on account of the information provided by the petitioner. It is submitted that in such circumstances it cannot be said that the petitioner was not aware of the fact that the contraband was dealt with by other accused in the case.

The learned counsel for the petitioner in reply would refer to the judgment of the Supreme Court in Rabi Prakash v. State of Odisha; 2023 SCC OnLine Sc 1109 to contend that where there is long incarceration, notwithstanding the provisions contained in Section 37 of the NDPS Act, bail can be granted to the petitioner. It is submitted that in the present case the petitioner has been in custody from 05-10-2021 and he has therefore completed nearly 2 years and and 2 months in custody.

Having heard the learned counsel appearing for the petitioner and the learned Public Prosecutor, I am of the view that the petitioner can be granted bail on the ground of long incarceration notwithstanding the fact that the provisions of Section 37 in fact prohibit the grant of bail unless the twin conditions specified in that Section are cumulatively satisfied. No criminal antecedents are reported against the petitioner. In Rabi Prakash (supra) it was held:-.

“4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

Accordingly this bail application is allowed. The petitioner shall be released on bail, subject to the following conditions:-

(i) The petitioner shall execute 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) The Petitioner shall appear before the Investigating officer in Crime No.5/2021 of Kattakada Police Station, Thiruvananthapuram as and when called upon to do so;

(iii) The petitioner shall not attempt to interfere with the investigation, influence or intimidate any witness in Crime No.5/2021 of Kattakada Police Station, Thiruvananthapuram;

(iv) The petitioner 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 jurisdictional court within seven days of release on bail

(v) The petitioner shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the investigating officer in Crime No.5/2021 of Kattakada Police Station, Thiruvananthapuram may file an application before the jurisdictional Court for cancellation of bail.