Dany Joshy vs State Of Kerala

A. Badharudeen, J

This is the second application for regular bail filed by the 3rd accused in Crime No.1112/2022 of Kunnamkulam Police Station, Thrissur.

Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents.

The prosecution allegation is that at about 11.30 p.m on 05.09.2022, accused 1 to 3 were found in possession of 0.44 grams of LSD stamp, 23.65 grams of Netrosepham tablets and 23.95 grams of ganja while they were carrying the same in a car bearing Registration No.KL 55 W 993.

On this premise, the prosecution alleges commission of offences punishable under Sections 22(c), 20(b)(II)(a) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act’ for short hereinafter).

While canvassing regular bail to the 3rd accused, who has been in custody from 06.09.2022 onwards, the learned counsel for the petitioner submitted that the petitioner is innocent and nothing recovered from the conscious possession of the 3rd accused and the recovery was from the 1st accused. Therefore, his complicity shall be read in isolation in the matter of possession of contraband to satisfy the twin conditions stipulated in Section 37 of the NDPS Act and he is liable to be released on bail.

It is pointed out by the learned counsel for the petitioner that the petitioner has no criminal antecedents and he has been in custody for more than one year, as of now. Since the 4th and 5th accused are absconding and for want of chemical analysis report trial could not be materialised within the period of six months. Therefore, the petitioner is liable to be released on bail following the ratio in [2023 (3) KHC 212], Fasil v. State of Kerala, since the petitioner’s case would squarely fall within the said ratio.

Opposing this contention, the learned Public Prosecutor would submit that on doubting the possession of noxious substances, when the Investigating Officer questioned accused 1 to 3, they had given inconsistent statements and thereafter the contraband was seized from the car, when the accused jointly transported the contraband and, therefore, the complicity of accused 1 to 3 cannot be segregated at all. The learned Public Prosecutor also pointed out that it is difficult to satisfy the twin conditions stipulated under Section 37 of the NDPS Act in this particular case to grant bail. But he also conceded that chemical analysis report not obtained so far.

In this matter, the earlier bail application filed by the petitioner was dismissed as per Annexure-A7 order in B.A.No.819/2023 dated 10.03.2023 finding that the rider under Section 37 of the NDPS Act could not be diluted. However, in [2023 (3) KHC 212], Fasil v. State of Kerala, this Court prescribed certain parameters to consider dilution of Section 37 of the NDPS Act and it has been held 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.”

Reading the facts of this case, it could be gathered that the ratio in Fasil’s case (supra), would squarely apply in this matter since the petitioner is a first time offender and he has been in custody for more than one year and also trial could not be completed within six months, since chemical analysis report yet to come in. Hence 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.