Muhammad Abdul Nazar vs State Of Kerala

Mohammed Nias C.P.J

This is an application filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.

The petitioners are accused Nos.1 and 2 in Crime No.56/2023 of Kozhikode Town Police Station, Kozhikode District, for having committed offences punishable under Section 22(c) and 22(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case is that on 19.01.2023 at about 3.15 p.m., petitioners, along with other accused, were found in possession of 84.290 grams of MDMA and 18.070 grams of Hashish near Government Model Higher Secondary School, Nagaram Amsom, Kozhikode Taluk, and thereby committing the above offence.

The learned counsel appearing for the petitioner would say that the petitioner is innocent and falsely implicated with ulterior motives. At any rate, he points out that the petitioner has been in custody since 20/01/2023, and continued custody of the petitioner is unnecessary.

The learned public prosecutor opposed the petition.

The petitioner was arrested on 19.01.2023, produced before the magistrate, and remanded to judicial custody on 21/01/2023. Learned counsel appearing for the petitioner submits that though the charge sheet was submitted before the court, it was returned for curing fundamental defects. Since the period of 180 days is already over, the petitioner was entitled to grant default bail under Section 167 of the Cr.P.C. The Court below held that the mere fact that the police report is returned for curing defects will not show that there is no police report so as to consider the bail application under the proviso of Section 167(2) of the Cr.P.C. Learned counsel invited my attention to the judgment of the Supreme Court in Achpal @ Ramaswaroop and another v. State of Rajasthan (2018 KHC 6714), which holds that mere return of the charge sheet by the magistrate, which was filed before ninety days, due to technical defects cannot be taken as that the charge sheet is filed and accused need not be granted default bail. Even in such cases, the accused is entitled to default bail after the expiry of ninety days if no charge sheet is filed. Learned counsel argues that the right of the accused to default bail is indefeasible. Considering the aforesaid circumstances and the fact that the liberty of the petitioner, which is Constitutionally guaranteed, is involved, even in cases where there is a doubt on the entitlement of the default bail, the benefit of such doubt has to be held in favour of the accused.

Considering that the petitioner has been in custody since 20/01/2023 and that there is no apprehension being raised by the prosecution that if released on bail, the petitioner is likely to abscond, I am inclined to grant bail. Accordingly, this application is allowed, and the petitioner is granted bail subject to the following conditions:-

The petitioner shall be released on bail on executing separate bonds for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction; one of the sureties shall be a parent or close relative of the petitioner.

He shall appear before the Investigating Officer as and when directed to appear.

He shall not intimidate or attempt to influence the witnesses, nor shall they tamper with the evidence or do anything that might adversely affect the trial;

He shall not commit any offence while on bail;

He shall not leave the State of Kerala without the permission of the Court having jurisdiction;

The petitioner shall surrender his passport, if any, within seven days from the date of his release before the Court concerned, and if the release of the passport is required at a later period, the petitioner shall be at liberty to move an appropriate application for the same before the court having jurisdiction. If he has no passport, he shall file an affidavit to that effect before the court concerned on the date of execution of the bond or within three days thereafter.

He shall furnish his present address and his mobile number to the Court concerned and the investigating officer.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail and pass appropriate orders in accordance with law.