Luther Ben vs State Of Kerala

A. Badharudeen, J

This is the 2nd application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the sole accused in crime No.63/2017 of Excise Enforcement and Anti-Narcotic Special Squad, Ernakulam now pending as S.C. No. 1060 of 2022 before the Special Court for the Narcotic Drugs and Psychotropic Substances Act (IInd Additional Sessions Court), Ernakulam.

No representation for the petitioner. Heard the learned Public Prosecutor. Perused the relevant materials form part of the case diary, placed by the learned Public Prosecutor.

The earlier bail application was dismissed vide order in B.A.No.102 of 2023 dated 24.02.2023 and the said order is as under:

“This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure at the instance of the sole accused in Crime No.63 of 2017 of Excise Enforcement and Anti-Narcotic Special Squad, Ernakulam now pending as S.C.No.1060 of 2022 before the Special Court for the Narcotic Drugs and Psychotropic Substances Act(IInd Additional Sessions Court), Ernakulam.

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

I have perused the relevant materials forming part of the case diary produced by the learned Public Prosecutor.

The prosecution allegation is that, at about 10.25 p.m. on 01.08.2017, detected 22.350 gram of MDMA from MHRY002/044059 located near PN/28 Kavikutil House, Forth Lane Road, Pratheeksha Nagar, Rameswaram Village, Kochi Taluk. The petitioner, who possessed the same, was arrested and the contraband taken into custody. Accordingly, crime registered alleging commission of offences punishable under Sections 8(c) r/w 22(c) of Narcotic Drugs and Psychotropic Substances Act. But later, it is revealed from the chemical analysis report that the contraband was not MDMA and the same is Methamphetamine Hydrochloride and accordingly, offence under Section 22(c) of the NDPS Act was deleted and Section 22(b) of the NDPS Act was incorporated.

While pressing for regular bail to the petitioner, who has been in custody from 18.10.2022 onwards, the learned counsel pressed for grant of regular bail highlighting his innocence and pointing out the quantity as one of intermediate.

Whereas, the learned Public Prosecutor vehemently opposed bail. According to him, eventhough the contraband was found to be Methamphetamine Hydrochloride and accordingly, the quantity of contraband has come down to intermediate quantity, the petitioner herein is not liable to be released on bail. If so, he would flee from trial. It is also submitted that the petitioner has criminal antecedents and he has involvement in Crime No.558/2013 of Cheranallur PS, 10/2015 of Fort Kochi PS, 789/2013, 1037/2013 of Mattanchery PS, 387/2020, 518/2019, 1217/2017, 285/2020 of Thoppumpady PS, 2095/2016 of Central PS, 2522/2011 of ET North PS, and 172/2019 of ET South PS. Further, he has been detained in custody under KAAPA. It is pointed out further that, though the occurrence was on 01.08.2017, the petitioner absconded for a period of five years and after tedious effort, the Investigating Officer nabbed him and detained him in custody. Therefore, if the petitioner will be released on bail, he would flee from trial.

On appraisal of the rival contentions, the prosecution allegation, as of now, is that the petitioner herein possessed 22.350 gram of Methamphetamine Hydrochloride and the same is intermediate quantity. It is shocking to note that, after commission of the offences, when the contraband was recovered from the house of the accused, he absconded for a period of more than five years and he was nabbed by the police only on 18.10.2022. Further he has criminal antecedents and the person is now detained in custody under KAAPA, since the petitioner is a person of such nature. Eventhough the rider under Section 37 of the NDPS Act would not attract in this case, the petitioner is not liable to be released on bail, since he had absconded for a period of more than five years and protracted the trial. If the petitioner will be released on bail, it is difficult to secure his presence for trial and he would definitely flee from trial. Therefore, this petition is found to be meritless and deserves dismissal.

In the result, this bail application fails and it is, accordingly, dismissed, directing the Special Court to expedite the trial, as early as possible, at any rate, within a period of six months from the date of production or receipt of a copy of this order.”

In fact, nothing substantiated to revisit the above order. Therefore, the petitioner cannot be released on bail.

Accordingly, this bail application stands dismissed.