The court established that prolonged detention, lack of prior offenses, and significant trial delays can justify bail under the NDPS Act despite the serious nature of the charges.

ORDER

Dated this the 19th day of October, 2023 This is the second application for regular bail, filed by the petitioner, who is the sole accused in Crime No.911/2022 of Pudukkad Police Station, Thrissur District, where he alleged to have committed offence punishable under Section 20 (b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’ hereinafter).

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

3. I have perused the relevant documents form part of the case diary produced by the learned Public Prosecutor and the report of the Investigating Officer.

4. The prosecution allegation is that, at about 3:31 hrs.

on 11.10.2022, based on a secret information received to the effect that, the accused was transporting contraband in a car, bearing registration No.KL-08/N-4843, after recording the said information in the general diary in writing, the Sub Inspector and party stood at the relevant place and intercepted the car. When the driver of the car was questioned, he had given inconsistent answers and thereafter, he was personally searched, after complying Section 50 of the NDPS Act and thereby, 21.05 Kgs of Ganja was seized. Accordingly, crime was registered alleging commission of the above offence and the accused has been in custody from 11.10.2022 onwards.

5. While pressing for grant of regular bail to the petitioner, who was nabbed along with commercial quantity of contraband, with a view to dilute or to satisfy the conditions provided under Section 37 of the NDPS Act, the learned counsel for the petitioner raised specific contention that, in this case, the search was in between sunset and sunrise and therefore, there should be materials at the instance of the prosecution to see compliance of 2nd proviso to Section 42 of the NDPS Act to show that the detecting officer recorded grounds for his belief under the proviso thereto, for search of the conveyance between sunset and sunrise. The learned counsel for the petitioner also submitted that, eventhough the bail application of the petitioner was dismissed as per Annexure 3 order in B.A.No.1197/2023, dated 22.3.2023, now, the petitioner has completed one year more in custody and he is a first time offender. He also pointed out that, so far, the Chemical Analysis Report not obtained and therefore, trial also could not be materialised within a period of 6 months. He further submitted that, in this matter, there is violation of compliance of 2nd proviso to (1) of the NDPS Act.

6. The learned Public Prosecutor opposed bail, highlighting the reasons stated in Annexure 3 and also pointing out the fact that, since the contraband is commercial in quantity, the petitioner could not be released on bail. The learned Public Prosecutor also conceded that the petitioner is Fasil State of Kerala a first time offender. The ratio in v. [2023 (3) KHC 212] is not disputed by the learned Public Prosecutor, since the accused completed his custody for one year. The learned Public Prosecutor further submitted that, the petitioner has no criminal antecedents and the trial in this case could not be materialised within a period of 6 months. Therefore, the ratio in Fasil ’s case (supra), would squarely apply to the facts of this case.

7. In Fasil ’s case (supra), 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 accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in