Vidhu Krishnan vs State Of Kerala

Viju Abraham, J

This is an application for regular bail.

Petitioner is the 5th accused in Crime No.864 of 2022 of Pandalam Police Station, Pathanamthitta District, registered alleging commission of offences punishable under Sections 22(c), 60(3), 8(c) and 29 of Narcotic Drugs and Psychotropic Substances Act.

The prosecution allegation is that, on 30.07.2022, at 3.55 p.m., Police Inspector, Pandalam and his party seized 4.480 grams of MDMA from the possession of the 1st accused and 151.490 grams of MDMA from the possession of the 4th accused; total quantity of 155.970 grams of MDMA from room no.106 of River Walk Hotel, Pandalam. It is also alleged that during search, police seized electronic weighing machine, plastic covers and also recovered two cars and one scooter. The petitioner and other accused were arrested from the spot.

The learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the above said crime and that he was not in possession of any narcotic drug. It is also submitted that the petitioner is in custody from 30.07.2022 onwards. It is further submitted that the investigation is over and charge has been laid and therefore further detention of the petitioner is not required for the purpose of investigation. It is the case of the petitioner that he had no knowledge about the contraband allegedly seized from the bag of the 4th accused. It is further submitted that he has no other criminal antecedents. Petitioner submits that he is in custody for long and that the trial of the case has not been completed. Petitioner raised a further contention that on the request made by the learned Public Prosecutor the trial of the case has been stopped. Petitioner would further submit that accused nos.3, 7 and 8 have already been granted bail. The 7th accused has been granted bail as per Annexure-A5 order whereas the 8th accused has been granted bail as per Annexure-A6 order.

The learned Public Prosecutor seriously opposed the application for bail mainly contending that commercial quantity of narcotic drug has been seized from the possession of the accused. Learned Public Prosecutor further submitted that even though the petitioner has moved this Court earlier seeking bail, said application was rejected and that there is no change in circumstances warranting a deviation from the decision taken earlier. The investigation revealed that the petitioner has an active role in the commission of the offence along with accused nos.1, 2 and 4 and it is the petitioner along with the 4th accused who went to Bangalore and procured the contraband. Learned Public Prosecutor would further submit that the petitioner is not involved in any other case. Learned Public Prosecutor upon instruction further submitted that it is true that the trial of the case has been stopped after the examination of few witnesses and time has been sought for producing the hardcopy of the CDR details and the same has been made available now and the case has been posted to 20.10.2023 for rescheduling the trial.

Admittedly petitioner is in custody from 30.07.2022 onwards. The trial of the case has not been completed. The Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi) [2023 SCC online SC 352] held that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the Act. The Apex Court in Rabi Prakash v. The State of Odisha, (SLP Crl. No. 4169 of 2023) has also reiterated that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo under Section 37 of the NDPS Act.

Considering the fact that the petitioner is in custody from 30.07.2022 onwards and taking note of the fact that he has no other criminal antecedents and further that accused nos.3, 7 and 8 have already been granted bail, I am inclined to grant bail to the petitioner, but taking into consideration the seriousness of the allegation, the same shall only be on stringent conditions. In the result, the bail application is allowed and it is ordered that the petitioner shall be released on bail on the following stringent conditions:

(i) Petitioner shall execute a bond for a sum of 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) He shall appear before the investigating officer in Crime No.864 of 2021 of Pandalam Police Station, Pathanamthitta District on all second Saturdays at 11.00 a.m. till completion of the trial.

(iii) He shall appear before the trial court on all posting dates without fail, except specifically exempted by the court.

(iv) He shall not leave the State of Kerala without obtaining prior permission from the jurisdictional Court.

(v) He shall surrender his passport before the jurisdictional Court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail;

(vi) He shall not attempt to interfere with the investigation or to influence any witness in the above said crime;

(vii) He shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the investigating officer in Crime No.864 of 2021 of Pandalam Police Station, Pathanamthitta District may file an application before the jurisdictional court, for cancellation of bail.