Sarath.K vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.663/2023 of the Iritty Police Station, alleging the accused to have committed the offences under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 15.6.2023.

The prosecution case, in brief, is that: on 15.6.2023, at about 2 p.m., the police seized 74.20 grams of Methamphetamine from the petitioner. Subsequently two other accused were added to the crime. Thus, the accused have committed the above offences.

Heard; Sri. K.Ramanadhan, the learned counsel appearing for the petitioner and Smt. Seetha S. the learned Public Prosecutor appearing for the respondents.

The learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the crime. The petitioner is totally innocent of the accusation levelled against him. Accused 2 and 3 have already been enlarged on bail. The investigation in the case is complete and the final report has been filed. The petitioner has no criminal antecedents. The petitioner has been languishing in the jail from 15.6.2023. The trial in the case is to commence. Therefore, continued detention of the petitioner is unwarranted. The petitioner will not commit a similar offence, if he is released on bail. Hence, the petitioner may be released on bail.

The learned Public Prosecutor conceded to the fact that the petitioner was arrested on 15.6.2023 and the charge sheet has been laid before the jurisdictional court on 30.9.2023. It is also admitted that accused 2 and 3 have already been enlarged on bail.

Indisputably,  the  petitioner  was  arrested  on 15.6.2023. He has been in judicial custody for the last 207 days. The petitioner has no other criminal antecedents. The final report has been laid on 30.9.2023. The accused 2 and 3 have already been enlarged on bail.

In Dheeraj Kumar Shukla v. The State of Uttar Pradesh [2023 KHC 6545], the Hon’ble Supreme Court has categorically held that the rigour under Section 37 of the NDPS Act can be diluted, if the accused has no criminal antecedents.

After bestowing my anxious consideration to the materials placed on record, particularly taking note of the fact that the petitioner has no criminal antecedents and he has been in judicial custody for the last 207 days and that the accused 2 and 3 have already been enlarged on bail, and there is no likelihood of the petitioner committing a similar offence if he is released on bail, I am of the definite view that the rigour under Section 37 of the NDPS Act stands diluted . Hence, the petitioner is entitled to be released on bail.

In the result, the application is allowed, by directing the petitioner to be released on bail on his executing a bond 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, which shall be subject to the following conditions: :

(i) The petitioner shall appear before the Investigating Officer on every alternate Saturdays between 9 a.m. and 11 a.m for a period of three months or till the final report is filed, whichever is earlier. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The  petitioner  shall  not  commit  any  offence while they are on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court  in  Sushila  Aggarwal  v.  State  of  Delhi  and another [2020 (1) KHC 663].