Suresh vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the 6th accused in Crime No.853/2021 of Angamaly Police Station, Ernakulam, alleging offences under Sections 8(c), 22(c), 27A and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. At present, the case is pending as S.C.No.1150/2021 on the files of the Additional Sessions Court-VIII, Ernakulam.

According to the prosecution, accused 6 and 7 arranged for 2.018 kgs of MDMA from Chennai, which was transported to Kerala in a pickup vehicle by accused No.1 and 2 and on 05.06.2021 at about 7.15 pm, near karukutty, the accused were found in possession of the said contraband and thereby they committed the offences alleged.

Sri. John Sebastian Ralph, the learned counsel for the petitioner submitted that, petitioner was arrested on 14.06.2021, and he has been in custody for the last almost two years. It was further submitted that, petitioner’s role is alleged to be financing the procurement of the contraband and there are no materials to connect him with the crime. It was further stated that, accused No.5 who was also alleged to have financed, and arranged the car for transporting the contraband, was released on bail by order of this Court on 02.06.2023, taking into account the absence of criminal antecedents and also the delay in conduct of trial. The learned counsel further submitted that, petitioner stands on the same footing as the 5th accused, as he has no antecedents and also that petitioner is alleged to have provided finance for purchasing the alleged contraband.

Smt. Neema.T.V, the learned Public Prosecutor opposed the application and submitted that, petitioner is one of the two persons who had financed the procurement of the narcotic drug and considering the quantity seized from accused 1 and 2 and the nature of offence alleged against the petitioner, bail ought not to be granted, despite the lapse of almost two years from the date of arrest. It was further submitted that, the case against the 5th accused stands on a different footing and therefore, no parallel can be drawn with the order granting bail to the said accused.

I have considered the rival contentions.

On a perusal of the order dated 02.06.2023 in B.A.No.2276/2022, it is noticed that the 5th accused is alleged to have entrusted Rs.3.2 lakhs with the 4th accused for the purpose of purchasing the contraband. He is also alleged to have arranged the car for transportation of the contraband. The allegations against the petitioner as the 6th accused is that, he had also financed procurement of the contraband. On an appreciation of the aforesaid circumstances, it is seen that 5th accused as well as the petitioner stands on practically the same footing-financing the procurement of the contraband.

Petitioner was arrested on 14.06.2021 and he has been in custody for the last 728 days. The trial in S.C.No.1150/2021 on the files of the Additional Sessions Court-VIII, Ernakulam, has not yet started. As observed by this Court in B.A.No.2276/2022, there is no possibility of the trial commencing within six months. Even though, at this stage, petitioner cannot be said to be innocent of the allegations, having regard to the period of detention already undergone, and the inability to commence the trial within six months, apart form the complicity of the petitioner not being on the basis of conscious possession of the contraband, I am of the view that the decision in Fasil v. State of Kerala [2023 (3) KHC 212] can be applied to the facts of the present case. It is relevant to note at this juncture that, petitioner has no criminal antecedents in his name.

Though it is observed in the order in B.A.No.2276/2022 that the grant of bail to the 5th accused cannot by itself be a reason for granting bail to the other accused, I am of the view that, since petitioner stands on the same footing as that of the 5th accused, there is no reason why the principle adopted in B.A.No.2276/2022 be not applicable to the petitioner also.

Taking into reckoning the aforesaid circumstances, I am of the view that, despite petitioner being alleged to have committed an offence under Section 22(C) of the NDPS Act, this bail application can be allowed and the petitioner be released on the following conditions.

a) Petitioner shall execute 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.

b) Petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial.

c) Petitioner shall not leave India without the permission of the Jurisdictional Court.

d) Petitioner shall not directly or indirectly make any inducement, threat of 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.

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

f) 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.

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