In Fasil v. State of Kerala's case

BY SR.PUBLIC PROSECUTOR SRI.K.DENNY DEVASSY THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON

20.12.2023, THE COURT ON 09.01.2024 DELIVERED THE FOLLOWING: B.A.NO.10432/2023 2 A. BADHARUDEEN, J. ================================ B.A No.10432 of 2023 ================================ Dated this the 9th day of January, 2024 O R D E R This is the third application for regular bail filed under Section 439 of the Code of Criminal Procedure by the 1st accused in crime No.51/2022 of Amaravila Excise Range Office, Thiruvananthapuram, where accused alleged to have committed offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for convenience).

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

3. I have perused the case diary along with relevant materials placed by the learned Public Prosecutor as well as the learned counsel for the petitioner. B.A.NO.10432/2023 3

4. The prosecution case is that at about 8.25 pm on

10.11.2022, the Circle Inspector of Excise Range, Neyyattinkara was conducting vehicle checking at Amaravila RTO Check post, it was found that the accused herein, who were travelled in KA- 01-AM-7666 vehicle, possessed 75 gram of MDMA, 5 ATM cards, Election ID card and PAN card. While recording the confession statement of the 1st accused, he had stated that the 3rd accused handed over the contraband and on further investigation, it was revealed that all the accused jointly transported the contraband. On this premise, the prosecution alleges commission of offences punishable under Sections 22(c) and 29 of the NDPS Act. The contraband was seized and the accused was arrested from the spot.

5. While pressing for regular bail, the learned counsel for the petitioner highlighted that the petitioner is innocent and he has no criminal antecedents. His custody from 10.11.2022 also is pointed out by the learned counsel for the petitioner. B.A.NO.10432/2023 4

6. The learned counsel for the petitioner would submit that the petitioner deserves bail in this case since he is a first time offender and has been in custody for the last more than one year in a case where the trial could not be completed within a period of 6 months following the ratio in [2023 (3) KHC 212], Fasil v. State of Kerala. He also submitted that all other accused in this case were released on bail.

7. Whereas the learned Public Prosecutor strongly opposed bail in a case involving commercial quantity of MDMA, where Section 37 of the NDPS Act interdicts grant of regular bail.

8. On perusal of the prosecution records, it could be noticed that 75 gram of MDMA and other items were recovered from the conscious possession of the petitioner himself. Thus, the prosecution case is well made out, prima facie.

9. In Fasil v. State of Kerala's case (supra) this Court laid down certain parameters, to grant bail to an accused in cases B.A.NO.10432/2023 5 involving commercial quantity of contraband, as under: “Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”

10. In this case no antecedents reported in so far as the petitioner is concerned and he has been in custody for more than one year. It is true that all other accused in this case were granted bail by this Court and grant of bail to some of the accused was by applying the ratio in Fasil v. State of Kerala's case (supra). In the report given by the learned Special Judge it has been stated that at least 10 months' time required to complete B.A.NO.10432/2023 6 the trial. Even though the reason stated for suggesting 10 months' time to complete the trial is not fully satisfactory, since the trial could not be completed within 6 months, I am inclined to release the petitioner on bail, who is a first time offender, and has completed custody for more than one year, on conditions.

11. Accordingly, this petition stands allowed and the petitioner can be enlarged on bail on the following conditions: i. 1st accused/petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned. ii. 1st accused/petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. He shall visit the Investigating Officer on every Monday in between 9 a.m and 12 noon for a period of two months and also appear before the Investigating Officer as and when directed. iii. 1st accused/petitioner shall not leave India without prior permission of the jurisdictional court. iv. 1st accused/petitioner shall surrender his passport, if B.A.NO.10432/2023 7 any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter. v. 1st accused/petitioner shall not involve or indulge in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted. However, as reported by the learned Special Judge (Additional Sessions Judge-I, Thiruvananthapuram), the learned Special Judge is directed to expedite the trial in this case within a period of 10 months from the date of receipt of a copy of this order, without fail and to report compliance. (A. BADHARUDEEN, JUDGE) rtr/ Sd/-