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2023 Supreme(Online)(KER) 24829
AKHIL CASTRO, – Appellant
Versus
STATE OF KERALA, – Respondent
In cases involving commercial quantities of contraband under the NDPS Act, bail is hedged by the conditions in Section 37, and the active role of the accused and the variety of contraband involved can influence the court's decision to grant or deny bail.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - BAIL - CONDITIONS - COMMERCIAL QUANTITY OF CONTRABAND INVOLVED - ACTIVE ROLE OF THE ACCUSED - VARIETY OF CONTRABAND - DELAY IN TRIAL - BAIL GRANTED AFTER SEVEN MONTHS IF TRIAL NOT COMPLETED
Fact of the Case:
The fifth accused in a case involving the possession of MDMA and hashish oil filed a bail application under Section 439 of the Code of Criminal Procedure. The prosecution alleged that the accused obtained the contraband from a lodge in Chennai and was present during the exchange of drugs. The accused denied involvement, claiming he was merely present in the lobby of the hotel.
Finding of the Court:
The court found that the accused had an active role in the transaction, as evidenced by CCTV footage and bank records. The court also noted the commercial quantity of contraband involved and the variety of substances, which supported the prosecution's case. Therefore, the court denied bail to the accused.
Issues: Whether the accused had an active role in the transaction of drugs?
Ratio Decidendi: The court held that the accused had an active role in the transaction of drugs, as evidenced by CCTV footage and bank records. The court also noted the commercial quantity of contraband involved and the variety of substances, which supported the prosecution's case. Therefore, the court denied bail to the accused.
Final Decision: The court denied bail to the accused, but directed the trial court to complete the trial within seven months. If the trial is not completed within that time, the accused may seek bail from the trial court if the delay is not attributable to him.
ORDER
The fifth accused in Crime No. 508/2022 of Aroor police station, registered alleging offences punishable under Sections 20(b)(ii)(A), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, has filed this application u/s 439 of the Code of Criminal Procedure seeking regular bail
2. The prosecution case is that on 19.07.2022 at about 10.30 a.m., accused Nos.1 to 3 were found possessing 185 grams of MDMA and 75.5 grams of hashish oil kept in the dashboard of the car bearing No.TN 43/X/6467, at a place near Nicolas Hospital, Eramalloor. The first accused obtained the above contraband from the fourth accused through the fifth accused from a lodge in Chennai and thereby committed the above offence.
3. Learned counsel for the petitioner and the learned Public Prosecutor were heard.
4. The learned counsel for the petitioner submits that he is a native of Tamil Nadu and that there is no role in the seizure. The only allegation is that he stayed together with A1 and that he was present in the lobby of the hotel. It is also pointed out that there are no calls between any of the accused and that A5 has no link except with A4. The learned counsel for the petitioner also submits that the petitioner was arrested on 21.10.2023 and has been in custody since then.
5. The learned Public Prosecutor opposing the bail application submits that A4 and A5 are the suppliers of drugs, A1 and A5 stayed together in the lodge and they were identified by the hotel staff they stayed in the adjacent rooms. The prosecution alleged that the exchange of drugs happened there. It is also pointed out that a huge quantity of drugs is involved. The statements of the hotel manager and the staff and the CCTV footage point out the role of the petitioner. Moreover, the CCTV footage was checked and found that A1 and the petitioner in the bail application (A5) were involved in the exchange of narcotic substances, In the above case A4, Binson's account is credited with a huge amount by A1 for receiving the narcotic substance and all the transaction details has been obtained from the bank. Later it is also learnt that A1 Stibin Mathew gave an order for buying narcotic substance to A4 Binson. Even, though the order is directly given by A1 to A4, A4 supplies the narcotic substance to A1 via A5 Akhil Castro. While ordering the narcotic substance, the amount is deposited in the account of A4 but A4 never directly supply the narcotic substance to A1. Transactions of these narcotic substances are done at a lodge named 'The Oaks Residency”, Pallikaranai, Chennai in which A5 Akhil Castro handed over the narcotic substance to A1 Stibin Mathew. A1 and A5 visited the Oaks residency situated at Chennai on 13.07.2022, here A1 stayed in Room No.511 while A5 stayed in Room No.505 and in this connection, evidence is collected from the register maintained in the lodge which includes all the details of persons staying in the lodge. Further to prove the presence of A1 and A5 in the lodge on 13.07.2022, their movements were recorded in the CCTV camera erected at the reception counter and the same was copied in a pen drive which was taken under bandobust in Form 15 and sent to the court. Moreover, A4 and A5 were natives of Kanyakumari District in Tamil Nadu State and their residence falls within 6 to 8 kilometers only.
6. Having considered the rival submission and in particular the facts noticed above, it cannot be said that the petitioner has no role in the transaction. Commercial quantity is involved inviting the rigour of Section 37 of the NDPS Act, and therefore grant of bail is hedged by the conditions in the said section.
7. Learned counsel for the petitioner brings to my notice the judgment of the Supreme Court in Mohd Muslim @ Hussain v. State (NCT of Delhi) (2023 KHC online 6336) and Rabi Prakash v. The state of Odisha [2023 Livelaw (SC) 533]. It has to be seen in Mohd Muslim @ Hussain (supra) that the accused therein was in detention for nearly 7 ½ years and the progress
