The lack of substantive evidence linking the applicant to the alleged crime allows for bail to be granted under the NDPS Act.

ORDER

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS ), seeking regular bail.

2. The applicant is the accused No.9 in Crime No.12/2020 of Ettumanoor Excise Range Office, Kottayam District now pending as S.C. No.56/2024 before the Special Court for NDPS Act Cases, Thodupuzha. The offences alleged are punishable under Sections 20 (b)(ii)(C), 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act).

3. The prosecution case, in short, is that the accused Nos.1 and 2 were found in possession of 62.5 kilograms of ganja concealed inside a lorry transporting NCERT textbooks in contravention of the provisions of NDPS Act. As against the applicant, the allegation is that he hatched criminal conspiracy with the other accused in the case for illicit traffic of commercial quantity of ganja and thereby committed the above offences.

4. I have heard Sri.P.Chandy Joseph, the learned counsel for the applicant and Sri.K.A.Noushad, the learned Senior Public Prosecutor. Perused the case diary.

5. The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to bail. On the other hand, the learned Senior Public Prosecutor submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicant, and he is not entitled to bail at this stage.

6. The applicant is in judicial custody since 12.11.2024.

Altogether there are ten accused. All the remaining accused except the applicant faced trial before the Special Court for NDPS Cases, Thodupuzha in S.C. (NDPS) 46/2021. The Special Court convicted accused Nos.1 and 2 and acquitted accused Nos.3 to 8 and 10. Since the applicant was absconding, the case as against him was split up and later on refiled as S.C. No.56/2024. The learned Senior Public Prosecutor made available to me a copy of the judgment in S.C. No.46/2021.

Point Nos.9 and 11 raised in the said judgment are as follows:

“9. Did the accused no.1 to 8 and 10 along with accused no.9 who is not arrested indulge in financing for illicit traffic of ganja by contributing money?”

“11. Had the accused no.1 to 8 and 10 hatched criminal conspiracy to illicit transport of ganja?”

In paragraph No.54 of the judgment, the Special Court found point Nos.9 and 11 against the prosecution. The allegation of conspiracy and financing for illicit trafficking of contraband by contributing money was found to be not proved. Admittedly, the contraband was not seized from the possession of the applicant. It was seized from the possession of accused Nos.1 and 2. The allegation against the applicant is that he hatched conspiracy with the accused and also financed for procuring the contraband. Since the Special Court has already found on those points in favour of the accused Nos.8 and 10 who stand in the same footing as that of the applicant, I am of the view that the rigor of Section 37 of the NDPS Act cannot be applied in this case. For these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose. Hence, the applicant is entitled to be released on bail.

In the result, the application is allowed on the following conditions: -

(i) The applicant shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.

(ii) The applicant shall not commit any offence of a like nature while on bail.

(iii) The applicant shall not attempt to contact any of the prosecution witnesses, directly or through any other