Malaichamy vs State Of Kerala

Raja Vijayaraghavan V, J

This application is filed under Section 439 of the Cr.P.C.

The applicants herein are the accused in S.C. No.1216/2019 on the files of the Additional Sessions Judge II, Thiruvananthapuram. They are

accused of having committed the offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act,

1985.

The prosecution allegation, as per the charge laid before the learned Special Judge is that, on 08.02.2019 at about 11.25 a.m., the vehicle in which

the applicants herein were travelling was intercepted at Pallichal junction by the Sub Inspector of Police, Nemom Police Station and on inspection of

the vehicle, they were found transporting 75.80 Kgs. of ganja in 40 packets in the dickey of the car.

Heard Sri. M.S. Amal Dharsan, the learned counsel appearing for the applicants and the learned Public Prosecutor.

The applicants had earlier approached this Court and their application for bail was dismissed by Annexure-II order. While dismissing the bail

application, this Court, in paragraphs Nos.7 to 10 held as follows:

'7. It is by now settled that the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case,

where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is

manifest that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable groundsâ€, which expression

means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this

reasonable belief contemplated, in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the

accused is not guilty of the offence charged. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called

upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. For that

purpose, the court is not required to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. The court has also to

record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion.

Having carefully considered the materials in the final report, I find that enough materials have been collected by the prosecution to link the applicants herein with

the trafficking of drugs. The contention that the procedural formalities have been violated has not been substantiated by the accused. The records reveal that the

contraband was being trafficked to the State of Kerala by disguising it as confectionery. They were not in possession of any bills or invoices, which would have

shown that they were merely drivers who were entrusted with the transportation of goods. Furthermore, the investigation conducted by the police clearly reveals that

the contraband was being transported to the State of Kerala for sale and distribution in the State. As held by the Apex Court in State of Punjab v. Baldev Singh [AIR

1999 SC 2378], drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a

country, but illicit money generated by drug trafficking is often used for illicit activities including terrorist activities. Drug trafficking, trading and its use have become

a global phenomena and has acquired the dimensions of an epidemic. It affects the economic policies of the State, destroys the young and healthy and corrupts the

system.

In that view of the matter, while considering an application for bail in a case of instant nature, this Court has to dovetail two conflicting demands, namely, on one

hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and

on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a

constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs

has huge implications both at the national level and also at the international level.

Having carefully weighed all the contentions advanced before this Court and after perusing the records, I am afraid that there are no substantial probable causes

for believing that the accused is not guilty of the offence charged. Furthermore, it would not be possible to conclude that the applicants are not likely to commit any

offence while on bail. I hold that the applicants have not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to

justify recording of satisfaction that he is not guilty of the offence charged. Since the applicants have been undergoing incarceration from 08.02.2019, the learned

Special Judge may make all endeavor to expedite the trial proceedings and take the matter to its logical conclusion at the earliest.'

The applicants contend that they have been in prison since 08.2.2019 and the chance of their case being taken up for trial in the near future is

remote.

The learned Public Prosecutor has opposed the prayer. It is submitted that there is no change of circumstances.

This Court while dismissing the earlier application and after evaluating the entire materials had held that there are no substantial probable causes for

believing that the accused is not guilty of the offence charged. Furthermore, it would not be possible to conclude that the applicants are not likely to

commit any offence while on bail. No contention is advanced by the learned counsel to conclude otherwise. In that view of the matter, I find no

reason to enlarge the petitioners on bail at this stage.

Having regard to the long period of incarceration undergone by the applicants, this Court had directed the learned Additional Sessions Judge to

furnish a report as to the prospects of expediting the trial. The report of the Additional Sessions Judge-II, Thiruvananthapuram which is dated

16.07.2021 is placed before this Court, which reads thus:

 “ With respect to the above, I may submit that on 16.07.2021 the case was adjourned to 02.08.2021 with a direction to produce the accused for hearing on

charge. So after framing the charge against the accused, this case can be disposed of within six months from the date of framing charge since so many other Sessions

Cases of the years from 2011 to 2014 and one time-bound case were already scheduled for trial till the month of November 2021.

In these circumstances, I submit that six months time is required to dispose of SC 1216/2019.â€​

In that view of the matter, while dismissing the application, there will be a direction to the Additional Sessions Judge-II, Thiruvananthapuram

wherein SC No 1216 of 2019 is pending to expedite the trial proceedings and conclude the same within the time frame mentioned in the report dated

16.07.2021.