T N Gopi vs State Of Kerala

Mohammed Nias C.P., J.

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

The petitioner is the third accused in Crime No.17/2018 of Excise Circle Office, Thiruvananthapuram District, for having committed offences punishable under Sections 8(c) r/w Section 20(b)(ii)(C), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The allegation against the petitioner is that on 01.09.2018 at about 1.45 p.m., the petitioner and the other accused were found in possession of 6.360 kilograms of hashish oil for the purpose of sale in contravention of the NDPS Act, and thereby committed the above offence.

The learned counsel appearing for the petitioner made the following arguments in support of the bail application. It is his specific argument that he was taken into custody on 31/08/2018 at Kattappana, Idukki district and the CCTV footage of the shop where he was at the time when he was nabbed. would clearly prove the same. The prosecution's allegation that on 01.09.2018 the petitioner was found in possession of the contraband seized and arrested at Thiruvananthapuram is totally wrong and fabricated. He also submits that the wife of the accused had filed a writ petition, as WP(C)No.16282/2019, to entrust the investigation in Crime No. 129/2019 of Kattappana Police Station to the Central Bureau of Investigation. He also argues that when the petitioner was apprehended there was no contraband at all with him. By Annexure I order, this Court had directed the trial to be completed within six months and the said order was passed on 20.05.2019 and still the trial is not over. The CCTV footage (visuals) which proved the contention of the petitioner as aforesaid was found to be unedited. The report from the State Forensic Science Laboratory, Police Department found that the pen drive which contained visuals as contended by the petitioner contained video files and after examination, it was found that no editing could be detected., but the prosecution was dissatisfied with the said report and sought for sending it to the Cyber Forensic Wing, State Forensic Science Laboratory, Thiruvananthapuram, for further examination. He submits that the petitioner is 76 years old with no antecedents and he has been in custody since 01.09.2018. At an earlier stage, the request of the petitioner to adduce evidence was turned down which forced him to approach this Court in Crl. M.C.No.2135/2021 and by order of this Court dated 3.11.2021 the application was allowed. He also relies on the judgment of the Supreme Court in Rabi Prakash v. The State of Odisha (Spl. Leave to Appeal (Crl) No.4169/2023).to and also the judgment in Mohd Muslim @ Hussai v. State (NCT of Delhi) (2023 ICO 499). to grant bail on account of the long incarceration of five years.

The learned Public prosecutor opposed the petition by filing a report stating that the petitioner and the other accused persons were apprehended and the contraband seized when A2 and A3 brought the contraband from Idukki and were travelling to Thiruvananthapuram. Every detail, the place of occurrence, the vehicle number, and the description of persons inside the vehicle has been noticed on the basis of the information received and the interception clearly substantiates the same. A3 has collected the contraband from one Ullas, who is still at large and the vehicle actually is in the name of the son of A3. Huge money was also recovered along with the contraband. In the disclosure statement of A3 the name Ullas was mentioned and his place of residence at Rajakkad was searched. He also submits that there were several calls between A1 and A3 between the period from 01.06.2018 to 01.09.2018 and except A3 all others used fake names and addresses.

Having considered the rival contentions, a few facts deserve to be noted. The contention of the petitioner from the beginning, that he was nabbed at Kattappana on 31/08/2018 and the prosecution story of seizure on 01/09/2018 at Thiruvananthapuram is completely wrong. The report from the State Forensic Science Laboratory, Police Department found that the pendrive which contained visuals as contended by the petitioner contained video files and after examination, it was found that no editing could be detected. CCTV footage primafacie proved the contention of the petitioner, as above. It is the prosecution which again requested a second inspection from the State Forensic Science Laboratory, Thiruvananthapuram. The length of incarceration, the age of the petitioner, and non-completion of the trial in spite of a direction by this Court in Annexure I order as early as 23/05/2019 are all factors in favour of the petitioner for grant of bail. This Court had called for a report by its order dated 27.07.2023 from the court concerned as to the present status of the case and also the time required for final disposal of the case. Learned Judge filed a report in the instant case on 3/8/2023 pointing out that the report of the FSL, Thiruvananthapuram as stated above is awaited and it is only after receipt of the same, proceedings can be fast-tracked and the exact time required for disposal intimated. Under such circumstances, the petitioner cannot be found fault for the delay in completion of the trial and therefore the statutory embargo created under Section 37 of the NDPS Act will have to give way to the Constitutionally guaranteed right. The petitioner cannot be attributed to have caused anything to delay the trial of the case. Under such circumstances, I am not inclined to grant bail to the petitioner on the following conditions:-

i. The petitioner shall be released on bail on executing separate bonds 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.

ii. He shall appear before the Investigating Officer as and when directed to appear.

iii. He shall not intimidate or attempt to influence the witnesses, nor shall they tamper with the evidence or do anything that might adversely affect the trial;

iv. He shall not commit any offence while on bail;

v. He shall not leave the State of Kerala without the permission of the Court having jurisdiction;

vi. The petitioner shall surrender his passport, if any, within seven days from the date of his release before the Court concerned, and if the release of the passport is required at a later period, the petitioner shall be at liberty to move an appropriate application for the same before the court having jurisdiction. If he has no passport, he shall file an affidavit to that effect before the court concerned on the date of execution of the bond or within three days thereafter.

vii. The petitioner shall furnish his present address along with his mobile number to the Court concerned as well as to the investigating officer.

viii. The petitioner shall appear before the court on every posting unless exempted by the court.

ix. The petitioner shall report before the Station House Officer of the Police Station limits where he resides on every alternate Monday at 10 a.m., till the completion of the trial.

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