Favas K.P vs State Of Kerala

A. Badharudeen, J

This is a second application for regular bail filed by the sole accused in Crime No.399 of 2022 of Kasargode Police Station, where prosecution alleges commission of an offence punishable under Section 22(C) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act” for short), 1985 by the accused.

Heard the learned counsel for the petitioner and the learned Public Prosecutor. Meticulously gone through the relevant documents form part of the case diary placed by the learned Public Persecutor.

The case of the prosecution is that at 10:15 hours, on 28.04.2022, accused was found in possession of 130 grams of MDMA kept for the purpose of sale near railway station, Kasargode. Accordingly, he was nabbed along with contraband and crime was registered alleging commission of the above offence.

It is submitted that since the petitioner has been in custody for more than one year where trial of the accused could not be finalised within a period of six months, the petitioner, who has no criminal antecedents, is liable to be released on bail following the decision in Fasil v. State of Kerala [2023 (3) KHC 212].

The learned Public Prosecutor submitted that the petitioner has no criminal antecedents and he has placed a report in this regard at the instance of the Investigating Officer. I had perused the report dated 09.08.2023 of the Special Judge, Kasaragod, in which, it is stated that the case could be disposed of after receipt of the chemical analysis report. Therefore, it appears that the trial could not be completed without getting the chemical analysis report.

In Fasil (supra), it is held as follows:

“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 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.”

It appears that the facts of this case is analogues to the one dealt with by this Court Fasil (supra) and therefore, the petitioner who has no criminal antecedents and has been in custody since 28.04.2022, is liable to be enlarged on bail.

In the result, this bail application stands allowed. The petitioner is enlarged on bail on the following conditions:

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 jurisdictional court concerned.

The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial.

The petitioner shall not leave India without the permission of the Special court.

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.

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.

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.