Nishan vs State Of Kerala

Bechu Kurian Thomas, J

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

Petitioner is the second accused in Crime No.625 of 2022 of Kadakkavoor Police Station, Thiruvananthapuram. He is alleged to have, along with the first accused, committed the offences under Section 22(c), 29 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

According to the prosecution, the accused had, in furtherance of their common intention, kept 320 gms. of MDMA in their possession for the purpose of sale and thereby committed the offences alleged.

Learned counsel for the petitioner contended that the the accused were arrested on 28.09.2022 and that more than 188 days have elapsed and the final report has not yet been filed. It was also submitted that an application was filed by the investigating officer as C.M.P.No.961 of 2023 under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, seeking extension of time to file the final report and the same was allowed by the learned Sessions Judge on 23.03.2023. It was submitted that the order was challenged by the first accused before this Court in Crl.M.C.No.3242 of 2023. By order dated 02.06.2023, this Court set aside the order granting extension of time to file the final report after noticing that the same was issued without giving a copy of the application to the accused and also without informing the accused of his right to object to such an application.

Learned counsel for the petitioner asserted that since the order granting extension of time has already been quashed and more than 180 days have elapsed since the petitioner was taken into custody, he is also entitled to default bail.

Smt.Neema.T.V., learned Public Prosecutor opposed the application and submitted that steps will be taken to challenge the order in Crl.M.C.No.3242 of 2023 and that considering the quantity of contraband seized, the petitioner ought not to be released on bail.

I have perused the order in Crl.M.C.No.3242 of 2023. This Court had quashed the order in C.M.P.No.961 of 2023 dated 23.03.2023 granting extension of time to file the final report. Since the order granting extension of time has been set aside by this Court, the investigating officer was bound to file the final report within the statutory period of 180 days. The final report having not been filed within the said statutory period, and the extension application having not been allowed, the petitioner is entitled to the benefit of the default bail. It was submitted that the first accused has already been released on default bail by the order of this Court dated 02.06.2023. The petitioner who stands in the same position as that of the first accused must also therefore be given the same benefit.

Accordingly, I allow this application on the following conditions:-

(a) The petitioner shall be released on bail on him executing a bond for Rs.2,00,000/- (Rupees Two Lakh only) with two solvent sureties each for the like sum to the satisfaction of the Additional Sessions Court-I, Thiruvananthapuram.

(b) The petitioner shall not enter into the limits of Thiruvananthapuram Revenue District except for appearing before the Investigating Officer or the jurisdictional court. If any modification of the condition is required, he may move the court having jurisdiction.

(c) The petitioner shall surrender his passport to the learned Additional Sessions Judge. If he is not holding a passport, or if the same has been already surrendered in any proceeding, an affidavit to that effect shall be filed.

(d) The petitioner shall not interfere in any manner with the investigation, if any, and shall not make any effort to influence the prosecution witnesses.

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