Sivaprasad. P.S vs State Of Kerala

A. Badharudeen, J

This is an application for regular bail filed by the 2nd accused in Crime No.853/2021 of Angamaly police Station.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

I have Perused the case diary, placed by the learned Public Prosecutor.

This crime was registered on 06-06-2021 alleging offence under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as ‘the NDPS Act’). The specific allegation is that on 05.06.2021, while the police party headed by the Sub Inspector was checking vehicles, a pick up van bearing registration No. KL 40 N 5444 driven by the first accused came the way from north to south. The vehicle was intercepted. At that time travel movements were restricted due to the pandemic and accused Nos. 1 and 2 who travelled in the vehicle did not carry affidavits disclosing the purpose of travel. Growing suspicion about their movement, their body was searched in the presence of a gazetted officer and on search the first accused was found carrying a bag containing 2.189 kg. of MDMA which is commercial quantity and thus following the procedural formalities, both of them were arrested and were remanded to judicial custody on 06.06.2021. Since then they have been in judicial custody.

The learned counsel appearing for the petitioner would submit that nothing was recovered from the conscious possession of the petitioner and the allegation of the prosecution is that the petitioner is the person who had arranged a car bearing Registration No. KL-23-K-1434 to transport the contraband and also he had given Rs.3.2 lakh for the purchase of the same to the 4th accused through his bank account. On this basis, the petitioner was nabbed and has been in custody.

The learned counsel appearing for the petitioner would submit that in the decision reported in [2023 (3) KHC 212] Fasil v. State of Kerala, this Court laid down certain parameters to dilute the rigour the under Section 37 of the NDPS Act and the same as under:-

“Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”

It is argued by the learned counsel for the petitioner that applying the ratio of the decision preferred in Fazil’s case (supra), this Court granted regular bail to the 5th accused as per Annexure A2 order. Subsequently, this court granted regular bail to the 6th  accused also. Therefore, the petitioner who has no criminal antecedents and has been custody from 06.06.2021 also deserves bail. Earlier, the learned Public Prosecutor opposed the bail highlighting the complicity of the petitioner in this matter in deviation from accused nos. 5 and 6.

To be on the crux of the matter, since the petitioner has been in custody from 06.06.2021 and he is a person having no criminal antecedents and the trial even not started and there is no possibility to start the trial within a period of six months, applying the ratio in Fasil’s Case (Supra) the petitioner can be enlarged on bail.

Therefore, this petition stands allowed. The petitioner is enlarged on bail on conditions:

i. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Special court concerned.

ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial.

iii. The petitioner shall not leave India without the permission of the Special court.

iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer.

v. The petitioner shall surrender his passport before the Special Court on the date of execution of the bail bond or within ten days therefrom, with special permission of the Special Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time.

vi. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted.