Nitheesh Kumar vs State Of Kerala

Mohammed Nias C.P, J

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

The petitioner is the 4th accused in Crime No.47 of 2021 of Circle Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad, Palakkad, for having committed offences punishable under Sections 20(b)(ii)(C), 27A, 28, 29 and 30 of the NDPS Act.

The prosecution case is that the accused 1 to 10 entered into criminal conspiracy for possessing and transporting ganja. Pursuant to the conspiracy, while they were transporting ganja, the Excise Circle Inspector seized 20.5 kg of ganja from the car bearing Regn. No.KL33 G 6670, in which the petitioner was seated in the driver’s seat. Thereby, the petitioner has committed the aforesaid offences.

I have heard the learned counsel for the petitioner and the learned Public Prosecutor.

The learned counsel for the petitioner would say that the petitioner is totally innocent and falsely implicated with ulterior motives. At any rate, he points out that the accused is in custody from 12.09.2021, and continued custody of the petitioner is unnecessary. He also relies on the judgments of the Supreme Court in Dheeraj Kumar Shukla v. State of Uttar Pradesh (SLP Criminal No.6690/2022) and MD Raja and another v. State of West Bengal (SLP Criminal No.6690/2022) and of this Court in Banash Basheer v. State of Kerala (B.A.No.5370/2023), Siddarth v. State of Kerala and another (B.A.No.4109/2023) and Fasil v. State of Kerala [2023 (3) KHC 212] that followed Dheeraj Kumar Shukla (supra). He would contend that the petitioner herein is similarly situated as that of the accused in those cases.

The learned public prosecutor opposed the petition. The learned Public Prosecutor makes available the FSL report for perusal. Though the Prosecutor opposed the bail application, having gone through the judgments cited on behalf of the learned counsel petitioner, I feel there is no reason why similar treatment accorded to the accused in those cases should not be granted to the petitioner herein. True that commercial quantity is involved in relation to which crime the petitioner is accused, however,  taking note of the above judgments, the absence of criminal antecedents and the fact that the petitioner has been in custody since 12.09.2021,and the chance of the trial getting over anytime soon being remote, the rigour of Section 37 of the NDPS Act has to be dispensed with at this stage. In such circumstances, without any expression on the merits of the case, the application seeking bail is allowed. In the result, the petitioner is released on bail subject to the following conditions:-

The petitioner shall be released on bail on executing bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;

The petitioner shall report before the Investigating Officer every Saturday between 9 a.m. and 10 a.m. till the final report is laid;

The petitioner shall furnish his residential address, including mobile phone number, to the investigating officer as well as to the court.

The petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses

The petitioner shall not be involved in any other crime while on bail.

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.

If any of the conditions are violated, the court concerned will be empowered to take steps for cancellation of bail as per law;