Shaji vs State Of Kerala

Ziyad Rahman A.A., J

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

The petitioner is the 2nd accused in Crime No.35 of 2022 of Chalakkudy Excise Range Office. The offences alleged against the petitioner and the other accused are under Sections 20(b)(ii)C, 29 and 60(3) of the NDPS Act, 1985. The prosecution case is that on 28.10.2022 at about 3.45 PM, the accused Nos. 1 to 3 were found in possession of 3.800 Kg of Hashis Oil and 120 grams of Charas while they were transporting the same in a lorry near Potta Asramam Junction, Chalakkudy. The accused persons were arrested on the same day, and since then, they have been under judicial custody. Even though the petitioner submitted an application seeking regular bail, the same culminated in Annexure-A order, by which his application was dismissed. This is the second application submitted by him seeking bail.

Heard Sri.C.Anil Kumar (Kallesseril), the learned counsel for the petitioner and Sri. Jacob Simon, learned Public Prosecutor for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. It was pointed out that he was accompanying the 1st accused to Coimbatore as he was made to believe by the 1st accused that he was going to Coimbatore to purchase birds for sale. It was contended that, while travelling with the 1st accused, the petitioner was not aware that the 1st accused had the intention to transport the contraband articles. It was further pointed out that after reaching Coimbatore, the 1st accused went to some places alone, collected the materials, and transported the same through the vehicle driven by the 1st accused. It was pointed out that only during the transit he became aware that the 1st accused was transporting the narcotic drugs. It was also contended that these aspects are clearly mentioned in the statements given by the accused persons. It is also pointed out by the learned Counsel for the petitioner that as per the confession statement of the 3rd accused, in the vehicle, the birds were also carried, which was not mentioned in the seizure mahazar. It was further contended that the petitioner has been under judicial custody since 28.10.2022, and about 11 months have elapsed. The petitioner is a person without any criminal antecedents, and the final report in this case was also submitted. Therefore, there is no purpose in keeping the petitioner under detention, contends the learned counsel for the petitioner. The learned Public Prosecutor, on the other hand, opposes the said application by pointing out that the quantity involved is huge, and in the light of the rigour under Section 37 of the NDPS Act, the petitioner cannot be granted bail.

I have carefully gone through the records. It is true that this Court earlier rejected the plea for regular bail. However, it is to be noted that the specific case of the petitioner is that he was just accompanying the petitioner without knowing the transportation of the contraband articles. Of course, to establish the same, he relied upon the confession statements of the accused 1 and 3. Anyhow, it is a matter to be established during the course of the trial. It is a fact that the petitioner has been in judicial custody for more than 11 months. The petitioner is a person with no criminal antecedents as well. Even though, the prosecution has a case that the 1st accused procured and transported the articles with the connivance of the petitioner, in the light of the case advanced by the petitioner by placing reliance upon the statements of the accused, there is some doubt as to his conscious possession of the article. The 3rd accused was already granted bail as well.

Therefore, I am of the view that there is satisfactory compliance with the conditions of Section 37 of the NDPS Act. In such circumstances, taking note of the long period of incarceration of the petitioner and the relevant aspects referred to above, I deem it appropriate to grant bail to the petitioner.

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

(i) The petitioner shall be released on bail on 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 jurisdictional Court.

(ii) The petitioner shall appear before the investigating officer as and when required.

(iii) The petitioner shall not commit any offence of similar nature while on bail.

(iv) The petitioner shall not make any 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.

(v) The petitioner shall not leave India without the permission of the trial Court.

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