The court granted bail due to lack of prima facie evidence against the petitioner and noted the negligence of the Investigating Officer, diluting the rigour under Section 37 of the NDPS Act.

ORDER

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 , by the 9^th accused in Crime No.310/2023 of the Nedupuzha Police Station, Thrissur, registered against the accused (ten in number) for allegedly committing 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 15.7.2023.

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 kgms of ganja in a car at a place named Pattala Kinar in the road from Kuriachira to Chiyyaram Althara junction, which was procured from Odisha making use of the funds advanced by the accused 5 to 7, 9 and 10. Thus, the accused have committed the above offences.

3. Heard; Sri. Sarath Babu Kottakkal, the learned counsel appearing for the petitioner and Smt. Neema T.V, the learned Public Prosecutor appearing for the respondent.

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. There is absolutely no material to connect the petitioner with the offences alleged against him. The petitioner has been in judicial custody since 15.7.2023. The accused 1 to 4 were enlarged on statutory bail by Annexures A2 and A3 orders by the Court of Session, Thrissur and the accused 5 and 7 were enlarged on bail by this Court as per Annexure A4 order and the order in BA No.10723/2023 on the specific finding that there was nothing on record to connect the said accused with the commission of the offences. Now, the Investigating Officer has laid Annexure A7 final report before the jurisdictional Court, which also does not show that the petitioner has any role in the crime. The investigation in the case is practically complete and recovery has been effected. Since all the other accused have been released on bail, the petitioner is also entitled to be released on bail. Hence, the application may be allowed.

5. The learned Public Prosecutor seriously opposed the application. She contended that there is a specific allegation against the petitioner that he financed the transaction. The Investigating Officer has found that the petitioner had transferred an amount of Rs.2,50,000/- to the bank account of the sister of the third accused, who in turn transferred the money to the account of the tenth accused. The accused 1 to 4 were granted compulsive bail and accused 5 and 7 were released on bail by this Court on the finding that there was nothing to establish their connection with the crime. The accused cannot seek parity with the other accused who have already been released on bail. Since Sec.27(A) has also been incorporated, the petitioner may not be released on bail. Hence, the application may be dismissed. Nonetheless, she conceded to the fact that the petitioner has no criminal antecedents and the investigation in the case is complete.

6. On going through the materials placed on record, it is evident that the accused 1 to 4 were released on statutory bail by the Court of Session as per Annexures A2 and A3 orders. Likewise, the accused 5 and 7 were released on bail by this Court as per Annexure A4 order and the order in BA No.10723/2023.

7. When the bail application came up for consideration on 25.1.2024, this Court, taking note of the fact that the accused 1 to 4 were released on statutory bail and that the Investigating Officer had not invoked Sec.36A(4) of the NDPS Act, directed the District Police Chief to file a report explaining the reason why the said provision was not invoked.

8. Pursuant to the above order, the District Police Chief has filed a report dated 2.2.2024 stating that on verifying the case diary it is understood that the Investigating Officer named, Nelson C.S, Sub Inspector of Police, Nedu