IMPORTANT POINT
The court ruled that incomplete investigation and lack of admissible evidence entitled the petitioner to statutory bail, affirming that bail is the rule and jail is the exception.

ORDER :

P.V. KUNHIKRISHNAN, J.

This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the 3 ^rd accused in Crime No.1614/2023 of Nadakkavu Police Station. The above case is registered against the petitioner and others alleging offences punishable under Sections 20(b)(ii)C and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act).

3. The prosecution case is that, on 28.12.2023 at about 12.30 am, accused Nos.1 and 2 in the crime were found in a car bearing registration No. AP-31/AZ- 7444 in the parking area opposite to the State Bank of India, YMCA Cross road, Kozhikode. On search of the car, 51.9 Kg of ganja was found kept in the boot space. Accused Nos.1 and 2 were arrested on the spot. Thereafter the petitioner who is the 3 ^rd accused was arrested on 28.06.2024. The final report was filed on 24.07.2024.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. The counsel for the petitioner raised a short point. The counsel submitted that as far as the petitioner who is the 3 ^rd accused is concerned, there is only confession statement of the co-accused. The counsel submitted that the confession statement is not admissible and therefore there is no material to connect the petitioner with the crime; hence the petitioner may be released on bail. The Public Prosecutor submitted that there are Call Details Records and Decoded Tower Location to prove that the petitioner and the other accused contacted. The counsel for the petitioner took a definite stand that along with the final report, no such material is produced.

6. This Court considered the contentions of the petitioner and the Public Prosecutor. According to the petitioner, there is only confession statement of the co-accused to connect the petitioner with the case. The Public Prosecutor submitted that there are Call Details Records and Decoded Tower Location to show that accused Nos.1 and 2 contacted the petitioner. The counsel for the petitioner disputed the same and submitted that nothing is produced along with the final report. This Court directed the Registry to get a report from the Special Court(NDPS Act Cases)/Additional District & Sessions Court, Vatakara about the same. It will be better to extract the report submitted by the learned Special Judge:

“The Call Details Records (CDR) is not produced by the investigating officer along with final report to connect the third accused in this case. It is stated in the final report that the investigating officer filed an application for getting certified copy of CDR and Decoded Tower Location of mobile phone No.9567612576 9995261298 and 9321643383 used by the accused No.1 to 3 for hatching the conspiracy to transport the contraband and it will be submitted on getting the same.”

7. From the above it is clear that even now the Call Details Records and Decoded Tower Location are not produced before the trial court. If that is the case, there is only the confession statement of the co-accused as far as the petitioner is concerned. A perusal of the report would show that the Investigating Officer submitted that he is submitting additional documents to prove the case against the petitioner. That itself shows that the final report as far as the petitioner/3rd accused is incomplete. This Court in Vimal K Mohanan v. State [2023 KHC 9028] observed like this:

“8. As discussed earlier, the criteria for deciding the entitlement for default bail is completion of the investigation and not filing of the final report. The word 'final report' is not mentioned in S.167. Therefore, when faced with the Public Prosecutor's application seeking extension, or that of the accused demanding statutory bail, the court's consideration should be whether the final report was filed after completing the investigation. If the final report is found to have been filed after completing the investigation in all respects, minor defects in the report, by itself, will not conf