IMPORTANT POINT
Bail is the rule and jail is the exception; absence of contraband justifies granting bail even under stringent statutes.

ORDER :

This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023.

2. Petitioner is the 3 ^rd accused in Crime No.235/2024 of Meenangadi Police Station, Wayanad. The above case is registered against the petitioner and others alleging offences punishable under Section 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Petitioner was arrested on 18.04.2024 and he is in custody.

3. The prosecution case is that on 06.04.2024 at about 9.30 am, while accused 1 and 2 were found in possession of 349 gram of MDMA, near panchayath bus stand, Meenangadi, in contravention to the provisions of NDPS Act. It is alleged that accused Nos.1 and 2 purchased the contraband from the 4 ^th accused for the purpose of sale to the 3 ^rd accused and committed the above offences.

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

5. The counsel for the petitioner submits that the allegation against the petitioner is that an amount of Rs.2,60,000/- was transferred to the 2 ^nd accused. He also submits that there is nothing to show that the above transaction is in connection with NDPS Act. It is also submitted that except the same, there is no other materials against the petitioner. It is also submitted that 1 ^st and 2 ^nd accused were already arrested and released on bail because the investigation was not conducted within the statutory period. It is submitted that the petitioner is in custody from 19.04.2024. The counsel relied on the judgment of the Apex Court in Shince Babu v. State of Kerala [2024 KHC OnLine 8084]

6. The Public Prosecutor also opposed the bail application. The Public Prosecutor submits that there is material against the petitioner and there is monetary transaction between the petitioner and 2 ^nd accused. It is an admitted fact that there is no contraband seized from the petitioner. It is also admitted that 1 ^st and 2 ^nd accused were released on default bail. The petitioner was arrested on 19.04.2024. He is in custody for about 11 months. The petitioner relied on the judgment of the Apex Court in Shince Babu 's case (supra). It is better to extract the relevant portions of the above judgment. Paragraphs 3 to 8 of the said judgment read as follows:

3. We have heard learned counsel for the parties and carefully perused the material placed on record.

4. It may be seen from para 6 of the impugned order that the High Court, while declining bail to the petitioner, was largely influenced by the fact that a huge quantity of contraband, which falls in the category of commercial', was recovered and as such, the rigors of S.37 of the NDPS Act are attracted. On a specific query, it is not disputed by learned State counsel that no contraband was recovered from the conscious possession of the petitioner. In such circumstances, it is difficult for us to apply the twin test of S.37 of the NDPS Act while considering the petitioner's prayer for bail.

5. Be that as it may, the petitioner is in custody since 11.04.2022 except for the period from 20.09.2022 to 27.06.2023 when he remained on bail pursuant to the order passed by the Trial Court / Sessions Court.

6. It seems that the investigation is complete and the conclusion of trial will take some reasonable time. The petitioner's co-accused are already on regular bail /default bail. As per the record, there are no criminal antecedents of the petitioner.

7. Taking into consideration all the attending circumstances but without expressing any views on the merits of the case, we are inclined to grant bail to the petitioner.

8. The petitioner is, accordingly directed to be enlarged on bail subject to his furnishing bail bonds to the satisfaction of the Trial Court.

7. Considering the above dictu