Poorna Kandiki vs State Of Kerala

Dr Kauser Edappagath, J

This application is filed u/s 439 of the Code of Criminal Procedure seeking regular bail.

The applicants are the accused Nos. 1 to 4 in Crime No.27/2022 of Excise Enforcement & Anti Narcotic Special Squad, Palakkad. The offences alleged are punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case, in short, is that on 24/08/2022 at 6.25 AM, the applicants were found in possession of 20.440 kilograms of dry ganja.

I have heard Sri. Nireesh Mathew, the learned counsel for the applicants and Sri.Ranjith George, the learned Senior Public Prosecutor. Perused the case diary.

The learned counsel for the applicants submitted that the applicants are innocent and have been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicants with the alleged crime; hence, they are entitled to get bail. On the other hand, the learned Public Prosecutor submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicants, and they are not entitled to bail at this stage.

The applicants were arrested on 24/08/2022 and since then they are in judicial custody. The case diary reveals that prima-facie there are materials on record to show the involvement of the applicants in the crime. Since the quantity involved is a commercial quantity, it is true, that the jurisdiction of this Court to grant bail is circumscribed by the provisions 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. However, the Apex Court recently in Rabi Prakash vs. State of Odisha [SLP (Crl.) No.4169/2023 decided on 13/07/2023] has held that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act. In Dheeraj Kumar Shukla vs. The State of Uttar Pradesh [Special Leave to Appeal (Crl.) No.6690/2022 decided on 25/01/2023] also, the Apex Court considering the long incarceration of the accused granted bail, though quantity involved was commercial quantity, holding that the embargo under Section 37 of the NDPS Act could be dispensed with in such cases. In Fasil vs. State of Kerala [2023 ICO 498], a Single Bench of this Court took the view that when the quantity of the contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, it can be considered for diluting the rigour under Section 37 of the NDPS Act. This Court while arriving such a conclusion followed the decision of the Apex Court in Dheeraj Kumar Shukla vs. The State of Uttar Pradesh (supra) and Mohd Muslim @ Hussain vs. State (NCT of Delhi) [2023 ICO 499].

Here also, the quantity involved is 20.440 kilograms of dry ganja, which is just above the intermediary quantity. Considering this fact and also considering the fact that the applicants are in custody for more than one year and they have no criminal antecedents, I am of the view that they can be released on bail. For all these reasons, I do not find any reason to hold that the continued detention of the applicants is required for any purpose. Hence, the applicants are entitled to be released on bail.

In the result, the application is allowed on the following conditions: -

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

(ii) The applicants shall fully co-operate with the investigation.

(iii) The applicants shall appear before the investigating officer between 10.00 a.m and 11.00 a.m every Saturday until further orders. They shall also appear before the investigating officer as and when required.

(iv) The applicants shall not commit any offence of a like nature while on bail.

(v) The applicants shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The applicants shall not leave the State of Kerala without the permission of the trial Court.

(vii) The application, if any, for deletion/modification of the bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.