Shabna Manoj vs State Of Kerala

Mohammed Nias C.P., J

Bail Application No.9834/2023 is filed by the 2nd accused, BA 9428/2023 is filed by the 3rd accused and BA 94332/2023 is filed by the 8th accused in Crime No.38/2021 of Excise Range Office, Ernakulam. The petitioners seek regular bail.

The prosecution allegation is that, on 19.8.2021 at 7.00 p.m. the Excise party conducted a raid at Merhaba Apartment and seized 1.085 kg of MDMA from the south-east corner of the car porch. Hence, crime is registered against the petitioners under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

Learned counsel for the petitioners argue that on 19.8.2021, the very same day on which the present crime is registered, earlier at 1.40 a.m., a raid was alleged to have been conducted inside the same apartment and crime 36/2021 was registered initially against five accused for the possession of 83.896 grams of MDMA. Later, it seems that 25 persons were made accused in that crime. It is from the same premises that the MDMA is said to have been recovered by about 19 hours by the same officer who earlier registered crime No.36/2021. Petitioners therefore alleged that the second crime was nothing but a fabrication by the Excise department. It is also argued that though a charge sheet was submitted on 15.10.2022, the case has not yet been numbered. The petitioners’ application for statutory bail was rejected. The learned counsel for the petitioners also reiterated the submissions made by the counsel in BA 9834/2023 and submitted that there is no antecedent except crime 36/2021.

The learned counsel appearing in BA 9432/2023 submitted that the seizure from the same place must be taken as the same crime and the two crimes being registered is nothing but a fabrication. It is also pointed out that A1, A5 and A6 are on bail. The persons from whom the alleged recovery was made are on bail. Therefore, these petitioners also may be enlarged on bail.

The learned Prosecutor opposing the bail applications submits that considering the quantity involved, the petitioners may not be released on bail. He also argued that it was the 8th accused who brought the contraband from Tamilnadu and handed it over to A1.

It is to be noted that the petitioners were arrested on 19.11.2021, 19.11.2021 and 22.3.2022 respectively. So far even the case has not been numbered, though a charge sheet has been filed on 15.10.2022. As per Rule 78 of the Criminal Rules of Practice, cases committed to the Court of Session shall be filed and numbered immediately on the receipt of the intimation of committal. The cases shall continue to bear the same numbers even when they are transferred to trial to the Additional or Assistant Sessions Judges.

Taking into account the fact that the case has not been numbered and that they have been in custody for long, there are no antecedents reported against the petitioners except crime 36/2021 where the seizure was on the same day and against which the petitioners herein have raised a contention that it is from one seizure itself and it should have been one case and the splitting up is nothing but a fabrication. It is also relevant to note that the accused from whom the seizure was effected were enlarged on default bail.

The Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi) [2023 SCC online SC 352] held that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the Act. The Apex Court,again in Rabi Prakash v. The State of Odisha, (SLP Crl. No. 4169 of 2023) has also reiterated that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo under Section 37 of the NDPS Act. Considering all these facts and circumstances and specifically taking note of the fact that the petitioners have been in custody for more than two years and that they have no other criminal antecedents except crime 36/2021, that the case has not even been numbered as a Sessions case after filing of the charge sheet making the completion of trial in the near future an impossibility, I am inclined to grant bail to the petitioners on the following conditions:-

i. The petitioners shall execute separate bonds for a sum of 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;

ii. The petitioners shall appear before the investigating officer in Crime No. 38 of 2021 of Excise Range Office, Ernakulam once a month;

iii.They shall appear before the trial court on all postings except specifically exempted by the trial Court.

iv. They shall surrender their passports, if any, within seven days from the date of their release before the Court concerned and if the release of the passports is required at a later period, the petitioners shall be at liberty to move appropriate application for the same before the court having jurisdiction. If they have no passport, they shall file an affidavits to that effect before the court concerned, on the date of execution of the bond or within three days thereafter.

v. They shall not attempt to interfere with the investigation or to influence any witness in the above said crime;

vi. They shall not involve in any other crime while on bail.

vii.They shall not leave the State of Kerala without the permission of the Court having jurisdiction;

viii.They shall not leave India without the permission of the jurisdictional Court.

ix. They shall furnish their present address along with their mobile number to the Court concerned as well as to the investigating officer.

If any of the aforesaid conditions are violated, the investigating officer in Crime No. 38 of 2021 of Excise Range Office, Ernakulam, may file an application before the jurisdictional court, for cancellation of bail.