IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.06.2022

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.No.11918 of 2022

Hari Hara Bagh

...Petitioner

Vs.

State, Rep. by

Inspector of Police,

NIB, CID, Kancheepuram,

Kancheepuram District.

Cr. No.3 of 2022

...Respondent

PRAYER:-Criminal Original Petition is filed under Section 439 of

Cr.P.C. praying to enlarge him on bail in connection with the Crime

No.3 of 2022 pending investigation on the file of the Inspector of

Police, NIB, CID, Kancheepuram

For Petitioner : Mr.R.Sankarasubbu

For Respondent : Mr.A.Damodaran,

Additional Public Prosecutor

ORDER

The petitioner, who was arrested and remanded to judicial

custody on 21.01.2022 for the offence under Sections 8(c), 20(b)(ii)

(c), 29(1) of the NDPS Act in crime No.3 of 2022 on the file of the

respondent police, seeks bail.

2.The case of the prosecution is that totally there are three

accused, in which, the petitioner is arrayed as A3. It is alleged

that A1 and A2 had jointly were in possession of 10 and 12 kgs of

Ganja in two bags and the specific allegation against the petitioner

herein is that, the petitioner had given money to the co-accused to

purchase the contraband from Odisha. Hence, the case was registered

against the petitioner.

https://hcservices.ecourts.gov.in/hcservices/

3.The learned counsel appearing for the petitioner contended

that, though the petitioner herein also hails from Odisha, it cannot

be constituted that he also travelled along with A1 and A2. That

apart, the petitioner was arrested and remanded to judicial custody

on 21.01.2022. Hence, he prays for grant of bail to the petitioner.

4.The learned Additional Public Prosecutor filed a counter and

would submit that all the accused A1 to A3 were in conscious

possession of the contraband (22kg in 2 bags) and that the petitioner

is an employer and A1 and A2 were employees. Naturally, the

petitioner directed A1 and A2 to carry the contraband. He also

produced the confession statment given by the co-accused. He would

also submit that the alleged quantity is a commercial quantity and A1

to A3 were in concious possession of the said contraband. Now,

respondent also completed investigation and filed final report and

yet to take cognizance by the trial Court. Therefore, he pray for

direction to the trial Court to complete the trial within the

stipulated time.

5. Admittedly, the petitioner was not in possession of the

contraband. That apart, the confession statement recorded from the

co-accused cannot be considered during the bail and it can be

considered only during the trial. Therefore, the confession statement

recorded under Section 67 of NDPS Act cannot be used at the stage of

bail. A1 and A2 were in possession of the contraband in 2 bags.

Except the fact that the petitioner also belongs to Odisha, there is

no material to connect A1 and A2 with the petitioner. While

considering the bail application, the prosecution failed to produce

any material to connect A1& A2 and the petition herein. Even assuming

that, the petitioner is the employer of A1 and A2 and had paid money

for purchasing contraband, the prosecution failed to produce any

evidence to show that the petitioner herein financed for purchase of

the contraband.

6. Therefore, the petitioner have made out a prima-facie case

to fulfill the conditions as contemplated under Section 37 of NDPS

Act and as such considering the facts and circumstances of the case

and also considering the period of incarceration suffered by the

petitioner ie., from 21.01.2022, this Court is inclined to grant bail

to the petitioner.

7. Accordingly, petitioner is ordered to be released on bail on

his executing a bond for a sum of Rs.10,000/- (Rupees ten thousand

only) with two blood related sureties, each for a like sum to the

satisfaction of the learned Judi