The rigour under Section 37(1)(b)(ii) of the NDPS Act and the importance of considering the mandate under Section 37 NDPS Act in granting bail.

COMMON ORDER :

[ Bail Appl..1585/2021, Bail Appl..1977/2021 ]

Dated, this the 16th day of March 2021

1. Applications for regular bail under Section 439 of Cr.P.C.

2. The applicant in B.A No. 1585/2021 is the 2nd accused while the applicant in B.A. No. 1977/2021 is the 3rd accused in Crime No.1118/2020 of Alappuzha North Police Station, for having allegedly committed offences punishable under Section 20(b) (ii) (C) of the Narcotic Drug and Psychotropic Substance Act, 1985.

3. The prosecution case, in brief, is that on 16.11.2020 on receiving a secret information about the movement of drugs, the Sub Inspector of Police attached to Alappuzha North Police Station, Sri.Tolson P. Joseph intimated his superior officer, the DYSP, and proceeded to intercept an Innova car bearing registration No.KL-03-Y-6776. There were three persons in the car. They were searched in accordance with law, nothing was recovered from their body, but the dickey of the car contained two bags concealed under the carpet and on inspection of that, it contained 24.560 kgs of ganja, a commercial quantity. The contraband was seized and the persons travelling in the car were arrested and arrayed as accused. The contraband was allegedly being brought from places like Arkkavalley in Andhra Pradesh, Coimbatore and Bangalore.

4. The second accused states that he was arrested not from Alappuzha, but from Thrissur. He was not present in the vehicle at the time of seizure. He was neither the owner of the vehicle. He has no criminal antecedents. His bail application filed before the Session's Court Alapuzha, was dismissed.

5. The third accused states that he is a cook in Cafe Decided On : Arabia, Ernakulam. He was returning for his work from Alappuzha and had requested the 2nd accused, who is known to him for a gratuitous lift in the car. Accordingly, he travelled in the car as a gratuitous passenger and he did not know about the ganja concealed inside the car. He submits that he is totally unaware of the transportation of ganja and has nothing to do with it, and hence not in conscious possession of the contraband. He too has no criminal antecedents and therefore, seeks bail. This is his second application for bail. His earlier application, B.A. No. 607/2021, was dismissed by the court.

6. Heard the learned Senior Counsel Sri K. Ramakumar for the second accused and Adv. Sri P. Thomas Geeverghese for the third accused. The learned Public Prosecutor, Sri. Santhosh Peter, opposed the applications with all vehemence.

7. The learned Senior Counsel Sri Ramkumar submits that the first accused has already been granted bail by a different Bench of this Court vide Order in B.A.No. 520/2021, and hence similarly placed second accused is also entitled to bail. The learned counsel Sri.Thomas appearing for the third accused, refers to the granting of bail to the first accused as a change in circumstances to seek bail in his successive application for bail.

8. It is further pointed out by the learned counsel appearing for the third accused that even though the FIR and the FI statement indicate that the detecting officer is the Sub Inspector, Sri Tolson P. Joseph, attached to the Alappuzha North Police Station, the remand report which is produced indicates that Sri.K.P. Vinod, Inspector of the Alappuzha North Police Station is the detecting officer. This discrepancy is a vital flaw in the prosecution case. I had the opportunity to discuss in great detail this aspect pointed out by the counsel and had overruled his objection. In this successive application for bail, it may not be appropriate to reconsider the points which has already been decided by this court. An accused has right to make successive applications for grant of bail. But, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a vie