ANTONY v. STATE OF KERALA

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SMT. RESHMI THOMAS (GP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A. No.10597/2023 -2- O R D E R The petitioner is the 3rd accused in NDPS Crime No.26/2021 of Excise Enforcement and Anti-Narcotic Special Squad, Ernakulam alleging commission of offences under Sections 20 (b) (ii) (c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (In short 'the 'NDPS Act'). The allegation in brief is that about 140 Kgs of Ganja were recovered from the possession of accused Nos. 1 and 2. About 6 months after the aforesaid seizure and on the basis of certain statements given by accused Nos. 1 and 2 the petitioner was also arrayed as 3rd accused in the case.

2. The learned counsel for the petitioner would submit that the petitioner is absolutely innocent in the matter. It is submitted that the so called confession statement of accused Nos. 1 and 2, copies of which have been served on the petitioner as part of final report in Crime No.26/2021 do not indicate the involvement of the petitioner in any manner. It is submitted that the statement of the 1st accused is only to the effect that he had other business transactions with the petitioner and worked as Driver of the petitioner. It is submitted that even the telephone calls stated to have been made by the petitioner with the other accused are stated to be in relation to other business transactions with the petitioner they had and nothing to do with the trade in narcotic substances. It is submitted that the 2nd accused in the case has already been granted bail by this court through order dated 08- B.A. No.10597/2023 -3- 01-2024 in B.A. No.11275/2023. It is submitted that there is a finding in the order in B.A. No.11275/2023 that it is unlikely that the trial of the case which is now pending as SC No.1038/2021 on the file of the District and Sessions Court, Ernakulam would be completed within a reasonable time. It is submitted that this court while disposing of the earlier bail application of the petitioner (through Annexure-III order) had directed that the trial of SC No.1038/2021 be expedited. It is submitted that even today, charges have not been framed in SC No.1038/2021 and therefore it is unlikely that the trial of SC No.1038/2021 will be concluded within a reasonable time. It is submitted that the petitioner has been in custody from 13-11-2021 and therefore the petitioner is entitled to bail, on account of long incarceration. It is also stated that chances of false implication in the present case cannot be ruled out as there is nothing in the statements recorded from respondents 1 and 2 indicate that the petitioner was involved in the case. The learned counsel has also placed reliance an order of the Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal; 2022 KHC 6720, the order of this court in Fasil v. State of Kerala; 2023 (3) KHC 212, and the recent order of the Supreme Court in in Rabi Prakash v. the State of Odisha and others ; 2023 LiveLaw (SC) 533 where it was held that when the provisions of Section 37 of the NDPS Act pitted against the right under Article 21 of the Constitution of India, the Court should lean in favour of granting bail B.A. No.10597/2023 -4- notwithstanding the conditions in Section 37 of the NDPS Act.

3. The learned Public Prosecutor vehementally opposes the grant of bail. It is submitted that there are clear materials which would indicate that the petitioner was also involved in Crime No.26/2021. It is submitted that there is nothing to suggest that the petitioner was falsely implicated. It is submitted that the arrest of the petitioner was also recorded in connection with another case registered under the NDPS Act, against the petitioner in the State of Tamil Nadu. It is submitted that the said case is registered after the registration of Crime No.26/2021. It is submitted that the 2nd accused in the case has been granted bail specifically noting that there are no criminal antecedents reported against him. It is submitted that though the crime registered at the State of Tamil Nadu is after the date of registration of crime No.26/2021, it must be noted that the said case also involves an offence under the NDPS Act and therefore one of the conditions in Section 37 which requires the court to be satisfied that the petitioner will not involve in any other case if he is granted bail cannot be said to be satisfied in the facts and circumstances of the present case. It is submitted that the orders of the Supreme Court which have been referred by the learned counsel for the petitioner and also the judgment of this court in Fasil (supra) are cases where no criminal antecedents are reported. It is submitted that in such circumstances the petitioner cannot claim any relief on the basis of the order B.A. No.10597/2023 -5- of the Supreme Court and the order of this court in Fasil (supra). It is also pointed out that the 2nd accused in the case has been granted bail specifically noting that there are no criminal antecedents reported against him.

4. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the view that the petitioner has not made out any case for grant of bail. The learned Public Prosecutor is right in contending that the cases where the bail has been granted even in the situations where Section 37 of the NDPS Act will apply and on the ground of long incarceration are cases where no criminal antecedents have been reported. In this case, it is not disputed before me that after the registration of Crime No.26/2021, yet another case has been registered against the petitioner in the state of Tamil Nadu, where again the allegation is that the petitioner was found in possession of a commercial quantity of Ganja. It is also not disputed before me that in the facts of the case registered against the petitioner in the State of Tamil Nadu, the allegation is that the contraband was recovered from the possession of the petitioner.

5. Therefore, I am unable to apply the view taken by the Supreme Court in the orders referred to above as also the view taken by this Court Fasil (supra) to the facts of this case. The Bail Application will therefore stand dismissed. It is noted that even after the directions issued by this Court in Annexure – III order in B.A.No.11275/2023, the trial of S.C.No.1038/2021 B.A. No.10597/2023 -6- on the file of District and Sessions Court, Ernakulam has not progressed. The learned counsel for the petitioner submits that the trial is getting delayed on account of the fact that there is no Presiding Officer in the Sessions Court where S.C.No.1038/2021 is being tried. Considering the fact that the petitioner has been in custody from 13-11-2021, I deem it appropriate to direct the Principal District and Sessions Judge, Ernakulam, to consider whether the trial of S.C.No.1038/2021, now pending before the I-Additional District and Sessions Court can be transferred to any other Sessions Court in the Ernakulam Division. Further, it is clarified that notwithstanding the dismissal of this bail application, if the petitioner makes out the case for grant of interim bail for some period, it will be open to the petitioner to move the Jurisdictional Court with an application for interim bail. AMG Sd/- GOPINATH P. JUDGE B.A. No.10597/2023 -7- APPENDIX OF BAIL APPL. 10597/2023 PETITIONER ANNEXURES Annexure-I TRUE COPY OF THE ORDER DATED 14.03.2022 PASSED BY THIS HON'BLE COURT IN BAIL APPL. NO. 1834/2022 Annexure-II THE TRUE COPY OF THE ORDER DATED 05.07.2022 PASSED BY THIS HON'BLE COURT IN BAIL APPL. NO. 4083/2022 Annexure- III THE TRUE COPY OF THE ORDER DATED 16.02.2023 PASSED BY THIS HON'BLE COURT IN BAIL APPL. NO. 6686/2022