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2024 Supreme(Online)(KER) 7418
HIGH COURT OF KERALA
C.S. DIAS, J
SHIBU – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl. 1887/2023
T.K.SANDEEP, VEENA HARIKUMAR, SWETHA R.
The prolonged incarceration of an accused under the NDPS Act, without the commencement of the trial, may warrant the court to consider granting bail, despite the statutory embargo under Section 37 of the NDPS Act.
Headnote:
NDPS Act - Bail Application - Section 37
Fact of the Case:
The petitioner was arrested on 09.07.2022 for allegedly committing offences punishable under Sections 20(b)(ii)(C), 20(b)(ii)(B), 29 & 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution alleged that 300 grams of Hashish oil was seized from the petitioner's house and 189.5 Kgs of ganja was seized from a car, and the petitioner's identity documents were found in the car.
Finding of the Court:
The court found that the petitioner has been in judicial custody for nearly two years and the trial has not commenced. The court relied on the Supreme Court's decision in Ankur Chaudhary v. State of Madhya Pradesh, which held that prolonged incarceration of an accused militates against the fundamental right under Article 21 of the Constitution, and the statutory embargo under Section 37(1)(b) of the NDPS Act may be considered. The court concluded that the petitioner is entitled to be released on bail.
Issues: Whether the petitioner should be granted bail, considering the prolonged incarceration and the delay in the commencement of the trial.
Ratio Decidendi: The court held that the petitioner is equally placed with the accused in Ankur Chaudhary's case, as he has been in judicial custody for nearly two years and the trial has not commenced. The court found that the peculiar facts and circumstances of the case warrant the petitioner's release on bail, despite the rigour of Section 37 of the NDPS Act.
Final Decision: The court allowed the bail application and directed the petitioner to be released on bail on executing a bond for Rs.1,00,000/- with two solvent sureties, subject to certain conditions.
The application is filed under Section 439 of the Code of Criminal Procedure, 1973 , by the first accused in Crime No.13/2021 of the Excise Range Office, Mannarkkad, Palakkad, which is registered against the accused for allegedly committing the offences punishable under Sections 20 (b)(ii)(C), 20(b)(ii)(B), 29 & 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’). The petitioner was arrested on 09.07.2022.
2. The crux of the prosecution case is that: on 05.11.2021, the Detecting Officer and party received secret information that the accused were dealing in psychotropic substances. Accordingly, they conducted a search and seized 300 grams of Hashish oil from the house of the first accused and 8 grams of Hashish oil from the house of the second accused. They also seized 189.5 Kgs of ganja from a car bearing Registration No.KL-05-F-658. Thus, the accused have committed the above offences.
3. Heard; Sri. T.K.Sandeep, the learned counsel appearing for the petitioner and Smt. Nima Jacob, the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The commercial quantity of contraband seized from a car does not belong to the petitioner. There is no material to substantiate that the petitioner has dealt with a commercial quantity of the contraband. In any given case, the petitioner has been in judicial custody for the last two years, the investigation in the case is complete, and the final report has been laid. However, the trial in the case has not commenced till date. Hence, the petitioner is entitled to the benefit of the law laid down by the Hon'ble Supreme Court in Ankur Chaudhary v. State of Madhya Pradesh [2024 KHC 8248]. He prayed that the petitioner may be enlarged on bail.
5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to establish the petitioner’s involvement in the above crime. In fact, the petitioner’s Aadhar card, Driving licence and Pan card were recovered from the dashboard of the car from which the contraband was seized. This by itself shows the petitioner’s complicity in the crime. Moreover, 300 grams of Hashish oil was seized from the house of the first accused. Therefore, the rigour under Section 37 of the NDPS Act applies to the facts of the case. The petitioner has not diluted the rigour contemplated under the NDPS Act. If the petitioner is let off on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed.
6. When the application came up for consideration on 23.05.2024, this Court had called for a report from the Trial Court to ascertain the status and reasonable time period to dispose of S.C.No.1350/2022.
7. Pursuant to the above order, the learned Additional Sessions Judge-V, Palakkad, by communication dated 24.05.2024, has informed this Court that S.C.No.1350/2022 is posted to 28.06.2024 for the report/certificate of the Regional Forensic Science Laboratory. The Trial Court would dispose of the case within six months from the date of receipt of the FSL report.
8. The prosecution allegation against the petitioner is that he was found in conscious possession of 300 grams of Hashish oil and subsequently, 189.5 Kgs. of ganja was seized from a car bearing Registration No.KL-05-F-658. It is alleged that the petitioner’s Aadhar card, Driving licence and Pan card were seized from the dashboard of the said car.
Therefore, the contraband belongs to the petitioner.
However, these are matters that have to be finally decided after trial. The fact remains that the petitioner has been in judicial custody since 09.07.2022 and the trial in S.C.No.1350/2022 has not yet commenced.
9. In Ankur Chaudhary’s case (supra), the Hon'ble Supreme Court, taking into consideration the fact that the petitioner in the said case was in judicial cu
