Ashish vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.53/2023 of the Thrissur Excise Range, alleging them to have committed the offences punishable under Sections 20(b) (ii) B, 29 & 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioners were arrested on 15.11.2023.

The prosecution case, in brief, is that: on 14.11.2023, at about 11.00 p.m., while the Excise Inspector attached to the Excise Range Office, Thrissur, was on vehicle checking duty, he seized 1.250 grams of ganja from the scooter driven by the first accused with the second accused on the pillion. Based on the confession statement made by the second accused, the detecting officer conducted a search in the house of the third accused and 2.750 Kgs. of ganja was seized from there. Thus, the accused have committed the above offences.

Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioners and Sri. M.P. Prasanth, the learned Public Prosecutor appearing for the respondent.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They are the sole breadwinners of their family. The Police have falsely implicated the petitioners in the crime on a mistaken identity. The petitioners are willing to abide by any stringent condition that may be imposed on them. Since the contraband is only an intermediate quantity, the petitioners may be released on bail. Moreover, they have no criminal antecedents. Hence, the bail application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that the investigation is still in progress. He conceded that the petitioners have no criminal antecedents. However, there is a likelihood of them committing the same offence, if they are released on bail. Hence, the application may be dismissed.

On going through the materials on record, it is found that, the detecting officer seized 1.250 grams of ganja from the possession of the accused Nos.1 & 2 and thereafter, on the basis of the confession made by them 2.750 Kgs. of ganja was seized from the house of the third accused. The petitioners were arrested on 15.11.2023.

In Dheeraj Kumar Shukla v. The State of Uttar Pradesh [2023 KHC 6545], the Hon’ble Supreme Court has categorically held that the rigour under Section 37 of the NDPS Act will stand diluted, if the accused have no criminal antecedents and they satisfy the twin conditions laid down under the above provision.

After bestowing my anxious consideration to the materials placed on record, particularly the fact that petitioners have no criminal antecedents, the investigation of the case is practically complete and prima facie the petitioners are not likely to commit the offence, if they are released on bail, I am of the view that the rigour under Section 37 of the NDPS Act stands diluted. Therefore, the petitioners are entitled to be released on bail.

In the result, the application is allowed, by directing the petitioners to be released on bail on each of them executing a bond for Rs.1,00,000/- (Rupees One lakh only) each 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 petitioners shall appear before the Investigating Officer on every alternate Saturdays between 9 a.m. and 11 a.m for a period of three months or till the final report is filed, whichever is earlier. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioners shall not commit any offence while they are on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passport, they 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 petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State of Delhi and another [2020 (1) KHC 663].