BY AD v. SAM ISAAC POTHIYIL

THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 10TH DAY OF JANUARY 2024 / 20TH POUSHA, 1945 BAIL APPL. NO. 9920 OF 2023 CRIME NO.39/2023 OF Chevayur Police Station, Kozhikode AGAINST THE ORDER IN CRMP 1012/2023 OF SPECIAL COURT (NDPS PETITIONER/ACCUSED 2: ACT CASES), VADAKARA SAFNAS, AGED 30 YEARS S/O MUHAMMAD, PILAKKUNNUMMAL HOUSE, ADIVARAM, PIN - 673586 BY ADV Bonny Benny RESPONDENTS/COMPLAINANT: 1 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 THE STATION HOUSE OFFICER, CHEVAYUR POLICE STATION, KOZHIKODE DISTRICT, PIN - 673012 BY SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

10.01.2024, ALONG WITH Bail Appl..9912/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A. Nos.9912 & 9920 of 2023 3 Dated this the 10th day of January, 2024 COMMON ORDER These applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.39/2023 registered by the Chevayur Police Station, Kozhikode, against the accused (four in number) alleging them to have committed the offences under Section 20(b) (ii) (C) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioners were arrested on 17.01.2023.

2. The prosecution case, in brief, is that: on

17.01.2023, at about 1.30 p.m., the accused 1 and 2 were found in possession of 19.640 kg of Ganja in a car bearing registration No.KL 10 AK 6431 which met with an accident at Moozhikkal. The first accused was the driver of the car. On the basis of the disclosure statement made by the first accused, another 5.366 kg of Ganja was seized from the house of the 2nd accused, who was the co- B.A. Nos.9912 & 9920 of 2023 4 passenger in the car. Subsequently, accused 3 and 4 were also arrayed as accused in the crime. It was on the basis of the conspiracy between the four accused that the crime was committed. Thus, the petitioners have committed the above offences.

3. Heard; Sri. Sam Isaac Pothiyil and Sri.Bonny Benny, the learned counsel appearing for the petitioners, and Sri. C.S Hrithwik and Smt.Seetha. S., the learned Public Prosecutors appearing for the respondents.

4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. Even going by the initial prosecution case, only an intermediate quantity was allegedly seized from the possession of the accused/petitioners. It is only to make the contraband article commercial quantity; subsequently, the prosecution has alleged that a further quantity of 5.366 kg of Ganja was seized from the petitioners. There are two other accused also involved in B.A. Nos.9912 & 9920 of 2023 5 this crime. The petitioners have been languishing in jail since 17.01.2023. The investigation of the case is complete, and the final report has been laid. The petitioners have no criminal antecedents. The petitioners are willing to abide by any condition imposed by this Court and undertake that they do not commit any other crime during the pendency of the case. Hence, they may be enlarged on bail.

5. The learned Public Prosecutors opposed the applications. They conceded the fact that the petitioners have no criminal antecedents and that the investigation of the case is complete. However, they in unison submitted that, in view of the rigour under Section 37 of the Act and taking into account that the contraband article is of commercial quantity, the petitioners may not be enlarged on bail.

6. It is true that under Section 37 of the Act, on reasonable grounds, this Court has to be satisfied that the petitioners have not committed the offence and are also B.A. Nos.9912 & 9920 of 2023 6 not likely to commit any offence while they are on bail.

7. On a careful reading of the First Information Report and other materials on record, it can be seen that initially the petitioners were allegedly found in possession of 19.640 kg of Ganja in their possession, which is undoubtedly of intermediate quantity. On the basis of the alleged confession made by the first accused, another

5.366 kg of Ganja was seized from the house of the 2nd accused. Although this Court had directed the Investigating Officer to file a statement explaining the exact quantity of contraband independently seized from the accused, he has reiterated that 27.066 kg of Ganga was seized from the petitioners/accused 1 and 2. The complicity of the accused 3 and 4 is also not spelled out in the said statement.

8. On a totality of the materials placed on record, taking into account that the contraband article is just above the intermediate quantity, there are four accused involved in the case, and the petitioners have been B.A. Nos.9912 & 9920 of 2023 7 languishing in jail since 17.01.2023, which is nearly one year now, the petitioners have no criminal antecedents and there is no definite period in which the trial is to commence. I hold that there are reasonable grounds to assume that the petitioners have not committed the offences, and they are not likely to commit the offence if they are let off on bail. Thus, the rigour under Section 37 of the NDPS Act stands diluted, and the petitioners are entitled to be released on bail. In the result, the application is allowed, by directing the petitioners to be released on bail on them 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, which shall be subject to the following conditions: (i) The petitioners shall appear before the Investigating Officer on every alternate Saturdays between 9 a.m. and 11 a.m for a period of three months or till the final report is filed, whichever is earlier. They B.A. Nos.9912 & 9920 of 2023 8 shall also appear before the Investigating Officer as and when required; (ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond; (v) The petitioners shall furnish their present address as well as their permanent address and mobile phone numbers to the court below and the Investigating Officer; B.A. Nos.9912 & 9920 of 2023 9 (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. (viii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State of Delhi and another [2020 (1) KHC 663]. mtk/10/1/2024 Sd/- C.S.DIAS, JUDGE