Varghese Shikson vs State Of Kerala

Shircy V., J

By this successive application for regular bail the 6th accused in Crime No.26 of 2020 of Excise Enforcement and Anti Narcotics Special Squad,

Malappuram registered for the offences punishable under Sec.20 (b) (ii) (c) and 29 of the NDPS Act seeks his release.

The petitioner has been in custody since 21.6.2021.

The prosecution allegation is that on 3.10.2020 at about 6.30 a.m the Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad

found the accused Nos.1 to 3 transporting 167.500 kg of ganja in a pick up van bearing Reg.No.KL-41-G-7479 through Wandoor-Manjeri road. The

ganja was collected by the 1st accused and the 4th accused from a place called Kadappa in Andhra Pradesh and transported the same in a lorry

bearing Reg.No.KL-55-Y 4116 to Periya and then it was shifted to a pick up lorry bearing Reg.No.KL-41-G-7479. Accused Nos.1 to 5 have financed

to purchase the narcotic drug and the procurement of the ganja for sale was as a result of the conspiracy hatched between all the accused(A1 to A9).

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

The total quantity of narcotic drugs involved in this case is 167.500 kg of ganja. The prosecution case itself reveals that while accused Nos.1 to 3

were transporting the same in a lorry through Wandoor-Mancheri road, the excise team intercepted the vehicle and seized the same. The role played

by this petitioner as revealed on investigation is that he has financed money to procure ganja from Andhra Pradesh. The amount alleged to have been

utilized by this petitioner to procure the contraband was Rs.6000/-. The learned counsel for the petitioner has argued that this much quantity of

contraband cannot be procured with an amount of Rs.6000/-. But it is to be noted that the prosecution case itself is that he along with the other

accused have shared the money and they together have purchased the contraband from Andhra Pradesh to conduct illegal sale. This court considering

the nature of the accusation and nature of the supporting evidence dismissed the first application filed by him by an order dated 2.11.2021. At that time

the investigation of the case was not over. Now investigation is over and charge sheet has been submitted on 17.12.2021. The prosecution has no case

that this petitioner has any criminal antecedents.

The request for bail at this stage by this petitioner is mainly, pointing out the fact that most of the accused persons arrested in this case were

released on bail. Of-course the release of accused Nos.1 to 4 was because they were entitled for statutory bail. The 7th accused was also released as

he was entitled for statutory bail. But this petitioner is not entitled for statutory bail as investigation was over and charge sheet was filed before the

statutory period.

When the first application was dismissed by this Court the investigating agency was having a case that apart from the disclosure statement of the

other accused more details such as bank statements and other materials are available to show that this petitioner is indulged in the illegal activity of

procuring ganja and transporting the same for sale. But, so far they could not gather any materials apart from what has already been collected by the

investigating agency immediately on his arrest. Now almost all the accused persons were released on bail. Except the 5th accused who is absconding

all the other accused were apprehended by the investigating agency. True that the earlier application was dismissed in the light of the embargo under

Section 37 of the NDPS Act. But as the role played by this petitioner is much less when compared with the participation of the other accused in

committing the offence, I think that his request for release on bail can be considered favorably. The petitioner has been in custody for more than seven

months. As referred above, he has no criminal antecedents also. Because of the pandemic situation there is every possibility to get the trial of case

delayed. So mainly because of the peculiar facts and circumstances involved in the case, he deserves some leniency.

Therefore, considering the fact that almost all the other accused were released on bail, I think that imposing stringent conditions, his request for bail

can also be allowed subject to the following conditions:

(i) The petitioner shall be released on bail on his executing bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to

the satisfaction of the court having jurisdiction. One surety shall be his close relative.

(ii) The petitioner shall fully cooperate with the trial of the case.

(iii) The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him

from disclosing such facts to the court or tamper with the evidence.

 (iv) The petitioner shall surrender his original passport before the court concerned. If he is not holding a passport, he shall file an affidavit regarding the same

before the jurisdictional court, within two weeks of his release on bail.

(iv) The petitioner shall not commit any offence while on bail.

In case of violation of any of the above conditions, the jurisdictional court is at liberty to cancel the bail in accordance with the law.