The rigor of Section 37 of the NDPS Act can be diluted if the accused has no criminal antecedents, has been in custody for over a year, and the trial cannot be completed within a reasonable time (at least six months). However, this does not apply to cases involving a commercial quantity of contraband where the trial is expected to be completed within six months.

ORDER

Dated this the 7th day of December, 2023 This is the second bail application for regular bail, filed by the petitioner, who is the 2nd accused in Crime No.905/2022 of Angamaly Police Station, Ernakulam, now pending as S.C.No.184/2023 on the files of the Sessions Court (Additional District and Sessions Court – II), North Paravur.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

3. The prosecution case is that, accused Nos.1 to 4 hatched conspiracy to possess and sell MDMA; and in continuation of the said conspiracy, they jointly collected 198.36 grams of MDMA and stored the same in Bluetooth speakers. Thereafter, the said MDMA was forwarded through Blue Dart DHL Courier service in Mumbai and received the same in Blue Dart DHL Office in Angamaly and the same was found in possession of the 1st accused when he had kept the same in a TATA Nano car, bearing Registration No.KL04-AH-4823, near Malabar Gold Jewellery, Angamaly. Thereafter, the 1st accused was arrested and crime alleging commission of offences punishable under Sections 22(c), 22(b), 20(b)(ii)(A), 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’

hereinafter), was registered.

4. The learned counsel for the petitioner argued at length to convince this Court that the petitioner deserves bail, since the petitioner has been custody from 5.10.2022 onwards and the trial not started yet. He also would submit that the petitioner is a first time offender. The learned counsel highlighted the ratio in Fasil v.

State of Kerala, reported in [2023 (3) KHC 212].

5. Whereas, the learned Public Prosecutor strongly opposed grant of bail and pointed out involvement of the petitioner in this crime with materials to connect him in commission of this crime. It is submitted that accused Nos.1 and 2 jointly stayed at the lodge in Andheri, Mumbai from 04.09.2022 to 15.09.2022 and they had given I.D proof of one Alif Muhammed Saifudheen and the same was seized from the house of the 2nd accused during investigation. It is also argued that the 2nd and 3rd accused invested money in the account of the 1st accused and the bank details are also available in this regard. It is pointed out that there are documents to connect the 2nd and 3rd accused also in this regard, since they had entrusted money with the 1st accused to purchase the contraband seized from the possession of the 1st accused. According to the learned Public Prosecutor, all accused in this case, are in custody and therefore, trial, involving huge quantity of contraband may be expedited and the trial of this case can be expedited within a period of 6 months.

6. In this matter, a report from the learned Special Judge, North Paravur, was called for. It is reported by the learned Special Judge that all the accused in this case have been in custody and the trial could be expedited. The relevant portion of the report is as under:

“S.C.No.184/2023 was posted to 12/12/2023 for framing of charges. As per reference No.3 above, this court had already sent a report on time required to dispose the case. Considering the report of this court, the Hon'ble High Court, in the bail application No.9141/2023 preferred by 3rd accused vide order dated 13/11/2023, directed this court to dispose the case within 6 months from the date of receipt of copy of the order. It is also submitted that all the accused in this case are in custody. This court is ready to dispose the case as directed in reference No.2, by the Hon'ble High Court.”

7. This Court laid down certain parameters to dilute the rider under Section 37 of the NDPS Act, involving commercial quantity. In the decision in Fasil v. State of Kerala, reported in [2023 (3) KHC 212], this Court held as under:

“Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accus