Manzoor Ali vs State Of Kerala

A. Badharudeen, J

This is the second application for regular bail, filed under Section 439 of the Code of Criminal Procedure, by the 5th accused in Crime No.469/2022 of Kuttipuram Police Station, Malappuram, where the accused alleged to have committed offences punishable under Section 20(b)(ii)(C) r/w Sections 29 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter).

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

I have perused the case diary as such along with the report of the Investigating Officer, placed by the learned Public Prosecutor.

The prosecution allegation is that, at about 11.30 hours on 19.08.2022, accused Nos. 1 to 3 were found in possession of 21.450 kilogram of Ganja, while they were transporting the same in a car, bearing registration No. TN-09-B-1275. The contraband was seized at Vasuppadi in Thangalppadi-Kumbidi Road. Accordingly, crime, alleging commission of the above offences, was registered.

While pressing for grant of regular bail to the petitioner, the learned counsel for the petitioner submitted that the petitioner is innocent and as per the final report, no materials collected to show that the 5th accused transferred money to the account of the 2nd accused or any other accused and participated in purchase of the contraband. It is also submitted by the learned counsel for the petitioner that, even otherwise, the petitioner, who has been in custody from 31.8.2022, is liable to be released on bail, following the ratio in Fasil v. State of Kerala [2023 (3) KHC 212], since the petitioner is a first time offender and the trial in this case could not be materialised within a period of six months.

The ratio in Fasil’s case (supra) is not disputed by the learned Public Prosecutor, since the accused completed his custody for one year as on 31.8.2023. The learned Public Prosecutor submitted that, the petitioner has no criminal antecedents and the trial in this case could not be materialised within a period of six months. Therefore, the ratio in Fasil’s case (supra), would squarely apply to the facts of this case.

In Fasil’s case (supra), this Court 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.”

To  be  on  the  crux  of  the  matter,  since  the petitioner has been in custody from 31.8.2022 and he is a person having no criminal antecedents and the trial could not be materialised, applying the ratio in Fasil’s case (supra), 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.

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.