Kerala High Court · 2010

K.T. SANKARAN, J.------------------------B.A. No. 1401 of 2010-------------------------------Dated this the 11th day of March, 2010O R D E R This is an application for bail under Section 439 of theCode of Criminal Procedure. The petitioner is accused No.1 inC.R.No.8 of 2009 of the Excise Enforcement and Anti NarcoticSquad, Kottayam.2. The offences alleged against the petitioner are underSections 21(c), 29 and 49 of the Narcotic Drugs andPsychotropic Substances Act, 1985.3. The prosecution case is that on 24.7.2009, accusedNos.1 to 3 were found transporting 1.47 kgs of Hashish oil inan autorickshaw driven by accused No.4. It was found thatthe Hashish oil was kept in the dashboard of the autorickshaw.Accused Nos.1 to 4 were arrested on 24.7.2009. Theprosecution case is that accused Nos.5 and 6 had supplied theHashish oil to the other accused.4. The petitioner is in judicial custody since 24.7.2009.The learned counsel for the petitioner submitted that thepetitioner is entitled to get default bail under the proviso to B.A. No. 1401/2010 2Section 167(2) of the Code of Criminal Procedure, since noapplication was filed by the prosecution to enlarge the period of180 days mentioned in the proviso to sub-section (4) of Section36A of the NDPS Act. The counsel also relied on the decision inUnion of India v. Thamisharasi and others ((1995) 4 SCC190). The learned counsel for the petitioner submitted that asper the order dated 22.2.2010 in B.A.No.872 of 2010, bail wasgranted to accused No.4. While granting bail to accused No.4,this Court held thus: “4. The petitioner is in judicial custody since24.7.2009.The period of 180 days is over. Theinvestigation is not complete and final report is notfiled. It is submitted by the learned counsel for thepetitioner that sub-section (4) of Section 36A of theNarcotic Drugs and Psychotropic Substances Act,1985 read with the proviso to Section 167(2) of theCode of Criminal Procedure would entitle thepetitioner to get default bail, since no application wasfiled by the prosecution to enlarge the period of 180days mentioned in the proviso to sub-section (4) ofSection 36A of the Narcotic Drugs and PsychotropicSubstances Act, 1985. The learned counsel for thepetitioner also relied on the decision in Union ofIndia v. Thamisharasi and others ((1995) 4 SCC B.A. No. 1401/2010 3190); wherein it was held that the limitations ongranting of bail specified under Section 37(1) of theNarcotic Drugs and Psychotropic Substances Act,1985 are in addition to the limitations provided underSection 437 of the Code of Criminal Procedure andthey do not exclude the applicability of the proviso toSection 167(2) of the Code of Criminal Procedure.5. Taking into account the facts andcircumstances of the case, the duration of the judicialcustody undergone by the petitioner, the nature ofthe offence and the present stage of investigation andalso taking note of the fact that the period of 180days from the date of arrest of the petitioner is over,I am of the view that bail can be granted to thepetitioner.”5. The petitioner moved for bail before the learnedSessions Judge. The application filed by the petitioner wasdismissed by the order dated 27.2.2010. It would appear thatthe order in B.A.No.872 of 2010 was brought to the notice of thelearned Sessions Judge. However, the learned Sessions Judgebrushed aside the contentions put forward by the petitioner andheld thus: B.A. No. 1401/2010 4“11. It is also contended on behalf of thepetitioners that the 4th accused has already moved abail application No.872/2010 before the Hon'ble HighCourt of Kerala and as per the order dated 22.2.2010he was granted bail on certain conditions. It isvehemently argued that since the Hon'ble High Courtgranted bail to A4 the petitioners are also entitled toget equal treatment and hence they are entitled tobail. On this aspect, I am of the view that theHon'ble High Court of Kerala while granting bail to A4has not specifically held the question whether 37(ii)need not be looked into and ignoring 37(ii) bail has tobe granted. As per para 5 of the order of Hon'bleHigh Court of Kerala in bail application No.872/2010it can be seen that bail is granted taking note of thefact that 180 days is already over. Since applicationof Sec.37(ii) is not specifically excluded by theHon'ble High Court of Kerala I am of the view that thespirit of the said order cannot be applied in theseapplications.”6. As per the order dated 5.03.2010, in Bail Application No.1337/2010, bail was granted to accused Nos. 2 and 3, afterholding that the learned Sessions Judge committed a grave errorin dismissing the applications. B.A. No. 1401/2010 57. In view of the fact that the petitioners 2 and 3 werereleased on bail as per the order dated 5.03.2010, I am of theview that the petitioner is also entitled to get bail for the samereasons. 8. The petitioner shall be released on bail on his executingbond for Rs.50,000/- with two solvent sureties for the likeamount to the satisfaction of the Court of the Special Judge forNDPS Act cases, Thodupuzha, subject to the followingconditions:a)The petitioner shall report before the investigatingofficer between 9 A.M. and 11 A.M. on all Mondaysand Thursdays, till the final report is filed or untilfurther orders;b)The petitioner shall appear before the investigatingofficer for interrogation as and when required;c)The petitioner shall surrender his passport before theCourt of the Special Judge for NDPS Act cases,Thodupuzha, within a period of one week. If thepetitioner does not hold an Indian Passport, anaffidavit sworn to by him shall be filed before theCourt of the Special Judge for NDPS Act cases,Thodupuzha, within one week; d)The petitioner shall not try to influence theprosecution witnesses or tamper with the evidence; B.A. No. 1401/2010 6e)The petitioner shall not commit any offence or indulgein any prejudicial activity while on bail;f)In case of breach of any of the conditions mentionedabove, the bail shall be liable to be cancelled.The Bail Application is allowed as above. K.T. SANKARAN, JUDGEln