Bipin Mohan vs State Of Kerala

Gopinath P., J

This is an application for regular bail.

The petitioner is the 1st accused in Crime No.1488 of 2021 of Aryancode Police Station, alleging commission of offences under Sections 8(c) and

22(c) of the NDPS Act. The allegation is that the 1st accused was found in possession of 13.6 grams of MDMA. He had given information that he

had procured the same from the 2nd accused. There is a further allegation that 2nd accused had in turn procured the contraband from the 3rd accused

in the case, who is stated to be absconding. After this bail application was filed in this Court, the petitioner, completed the period of 180 days in

custody, having been arrested on 02.08.2021.

Without going into the merits of the case, the learned counsel appearing for the petitioner would contend that the petitioner is entitled to bail in terms

of Section 36A(4) of the NDPS Act, which reads as follows:-

“(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the

references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to “ninety daysâ€, where they occur, shall be construed as

reference to “one hundred and eighty daysâ€​:

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period

up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond

the said period of one hundred and eighty days.â€​

It is not disputed before me that the drugs seized from the 1st petitioner is in commercial quantity. Section 37 of the NDPS Act mandates that no

bail shall be granted in respect of persons accused of offences under the NDPS Act, if the drugs in question are in commercial quantity, unless twin

conditions are satisfied. These conditions are that the court must have reasonable grounds for believing that the accused is not guilty of the offence

and that he is not likely to commit any offence while on bail. The learned counsel for the petitioner would contend that there is no conflict between the

provisions of Section 36A(4) and the provisions of Section 37 of the NDPS Act and states that the issue has been considered by the Madras High

Court in the decision reported in Tamizharasi and Another v. Assistant Director, Narcotic Control Bureau [1996 KHC 2689]. It is also pointed out that

when the accused has been in custody for the maximum statutory period without the filing of a final report, the Magistrate or the Special Judge in the

case of NDPS offences would thereafter be incompetent to continue the accused in custody. It is submitted that the petitioner is, therefore, entitled to

be released on bail as in the present case no charge sheet has been filed within the statutory period of 180 days in 36A(4) of the NDPS Act.

Heard the learned Public Prosecutor also. The learned Public Prosecutor would submit that the final report could not be prepared and filed in the

matter within the maximum period prescribed in Section 36A(4) on account of the fact that the 3rd accused is still absconding. It is also pointed out

that the report from the Forensic Science Laboratory has not yet been received. It is submitted that an application for extension of time under the

proviso to sub-section (4) of Section 36A of the NDPS Act has been preferred by the prosecution.

Having regard to the facts and circumstances of the case, I am inclined to hold that there is merit in the contention raised by the learned counsel for

the petitioner in this case that the petitioner is entitled to be released on bail, as he had completed the maximum period provided for in Section 36A(4)

of the NDPS Act and the Special Court does not have power to extend his remand beyond the period prescribed in sub-section (4) of Section 36A of

the NDPS Act unless there is an order under the proviso to that sub-section. I am in respectful agreement with the view taken by the Madras High

Court in Tamizharasi and Another v. Assistant Director, Narcotic Control Bureau (supra). Though the learned Public Prosecutor points out that a

report seeking extension of time to file a charge sheet was filed before the Special Court, no orders have been passed till date on the said application. I

am of the view that unless orders are obtained before the completion of the statutory period, the mere filing of an application will not take away the

right of the accused to get statutory bail.

In the result, this bail application is allowed and it is directed that the petitioner shall be released on bail subject to the following conditions:

(1) The petitioner shall execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum to the satisfaction of the

Jurisdictional Court;

(2) Petitioner shall report before the investigating officer in Crime No.1488 of 2021 of Aryancode Police Station, on every Saturday at 11.00AM until further orders;

(3) The petitioner shall not attempt to interfere with the investigation or to influence or intimidate any witness in Crime No.1488 of 2021 of Aryancode Police Station;

(4) The petitioner shall surrender his passport before the Jurisdictional Magistrate. If he does not have a passport, an affidavit shall be executed to that effect and the

same shall be filed before the said court within seven days of release on bail;

(5) 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.1488 of 2021 of Aryancode Police Station, may file an application

before the Jurisdictional Court for cancellation of bail.