BY AD v. JERRY PETER

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PUBLIC PROSECUTOR SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A. NO.10723 OF 2023 2 Dated this the 8th day of January, 2024 ORDER The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 7th accused in Crime No.310/2023 of the Nedupuzha Police Station, Thrissur, registered against the accused (ten in number) alleging to have committed the offences punishable under Sections 20(b)(ii), (C) and 27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 26.6.2023.

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

5.5.2023, at about 00.00 hours, the police party, on the basis of a secret information, conducted a search and found the accused 1 to 4 in possession of 220.910 kg of ganja in a car at a place called Pattala Kinar in the road from Kuriachira to Chiyyaram Althara junction, which B.A. NO.10723 OF 2023 3 was procured from Odisha making use of the funds advanced by the 5th accused. Thus, the accused have committed the above offences.

3. Heard; Sri. Jerry Peter, the learned counsel appearing for the petitioner and Smt. Seetha S. the learned Public Prosecutor appearing for the respondent.

4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against her. She has been falsely implicated in the crime. The accused 1 to 4 were granted bail by the Court of Sessions, Thrissur and the 5th accused was granted bail by this Court in B.A. No. 8508/2023. The petitioner is at par with the 5th accused as per the allegations in the FIR. The petitioner is a lady and has to look after her family. The petitioner is willing to abide by any stringent conditions imposed by this Court. Hence, the petitioner may be enlarged on bail.

5. The learned Public Prosecutor, on instructions, submitted that, although the petitioner has no criminal B.A. NO.10723 OF 2023 4 antecedents, the investigation reveals that the funds for purchasing the contraband article was transferred to the petitioner’s bank account. The petitioner and the 8th accused are hailing from Odisha. If the petitioner is enlarged on bail, there is every likelihood of the petitioner to flee from justice and also tamper with evidence. Nevertheless, she conceded to the fact that the petitioner has no criminal antecedents and the investigation in the case is complete and the final report has been laid. She prayed that the application be dismissed.

6. On an appreciation of the materials placed on record, it can be gathered that the petitioner is the 7th accused in the crime. The accused 1 to 4 were arrested on the ground that they were found in possession of

220.910 kg of ganja. It was subsequently the petitioner was implicated as an accused on the ground that she and the 8th accused procured the contraband articles from the State of Odisha. Indisputably, the petitioner has been in B.A. NO.10723 OF 2023 5 judicial custody since 26.6.2023. The accused 1 to 4 have been released on statutory bail as per Annexure A2 order passed by the Court of Session, Thrissur. Likewise, the 5th accused has been enlarged on bail by this Court in B.A. No. 8508/2023 prima facie finding that there was no proof of financial transaction as alleged by the prosecution.

7. In Dheeraj Kumar Shukla v. The State of Uttar Pradesh [2023 KHC 6545], the Hon’ble Supreme Court has categorically held that the rigour under Section 37 of the NDPS Act can be diluted, if the accused has no criminal antecedents.

8. After bestowing my anxious consideration to the materials placed on record, and taking note of the fact that the petitioner has been in judicial custody since

26.6.2023 and accused 1 to 5 have already enlarged on bail and the petitioner has no criminal antecedents and further there is no likelihood of the petitioner committing similar offence if she is released on bail and moreover, B.A. NO.10723 OF 2023 6 the petitioner is a lady, I am of the definite view that the rigour under Section 37 of the NDPS Act stands diluted. Hence, the petitioner is entitled to be released on bail. In the result, the application is allowed, by directing the petitioner to be released on bail on her executing a bond 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 petitioner 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. She shall also appear before the Investigating Officer as and when required; (ii) The petitioner 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 her from disclosing such facts to the court or to any B.A. NO.10723 OF 2023 7 Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while they are on bail; (iv) The petitioner shall surrender her passport, if any, before the court below at the time of execution of the bond. If she has no passport, she shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) 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. (vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the B.A. NO.10723 OF 2023 8 matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State of Delhi and another [2020 (1) KHC 663]. SD/- C.S.DIAS, JUDGE rmm8/1/2024