Fahad vs State Of Kerala

A. Badharudeen, J

This is the 4th application for regular bail filed by the 4th accused in Crime No. 5/2020 of Attingal Excise Circle Office, Thiruvananthapuram, filed under Section 439 of the Code of Criminal Procedure.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

3.I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor.

On 22.8.2020 at about 7.30 p.m the Circle Inspector of Excise, Attingal received a discreet information that one Arjun das along with his friends are engaged with illegal sale of narcotic drugs in a house located near Vilayinmoola junction at Keezhattingal village. Immediately he proceeded to the spot. When he reached there with his team a Fortuner car driven by the 1st accused and a Ford Icon car driven by the 2nd accused were found coming out to the road. The vehicles were intercepted by the Excise officials and they could seize 3.350 Kgs of Ganja from the Fortuner car and 3.550 Kgs of Ganja from Ford Icon car. On suspicion the house was also searched and 3.45 Kgs of Ganja was seized from there. Then, on the basis of the information received from the accused Nos. 1 and 2 the Excise team along with them (accused Nos.1 and 2) proceeded to a restaurant by name 'Mamba Restaurant Cafe' owned by the 4th accused (the petitioner). A lorry bearing No.KL-16-U2153 was found parked in front of the restaurant. On seeing the Excise party, the 4th accused who was in the lorry fled away from there. On examination of the lorry 3.600 Kg of Ganja was seized hidden near the driver's seat of the lorry. The excise officials conducted search of the restaurant and 14.75 Kgs of Ganja and 11.300 Kg of Ganja found separately packed in two gunny bags were also seized. All the accused except this petitioner, were arrested and crime was registered as mentioned above.

The learned counsel for the petitioner, while pressing for regular bail for the petitioner, would submit that the petitioner is in custody from 23.09.2020, involving 40 Kgs of Ganja. It is also submitted that the petitioner has no criminal antecedents and the case at hand would fall similar to the facts dealt by this Court in the decision reported in Fasil v. State of Kerala [2023 (3) KHC 212].

The learned Public Prosecutor conceded that no criminal antecedents were reported insofar as the petitioner is concerned, though he opposed grant of bail.

In this matter, in fact, commercial quantity of contraband was seized from the petitioner and the petitioner is the first time offender. Since the petitioner has been in custody from 23.09.2020, for the last three years, his case should have been analysed, in view of the ratio held in Fasil's case (Supra). In the said case, this Court enunciated following principles to dilute the rider under Section 37 of the NDPS Act.

“10. 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.”

Going by the facts of the present case, the ratio held in Fasil's case (Supra) would squarely apply in this case. Therefore, I am of the view that the petitioner can be enlarged on bail satisfying the rigour under Section 37 of the NDPS Act.

Accordingly, the petition stands allowed and the petitioner can be enlarged on bail on the following conditions:

i. Accused/petitioner shall be released on bail on their executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties for the like amount to the satisfaction of the Special Court concerned.

ii. Accused/petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. He shall visit the Investigating Officer on every Monday in between 9 a.m and 12 noon for a period of two months and also appear before the Investigating Officer as and when directed.

iii. Accused/petitioner shall not leave India without prior permission of the Special Court.

iv. Accused/petitioner shall surrender the passport, if any, within 7 days from the date of his release, before the trial court. If the petitioner has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter.

v. Accused/petitioner shall not involve or indulge 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 alone shall be a reason to cancel the bail hereby granted.