IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 19^TH DAY OF JANUARY 2024 / 29TH POUSHA, 1945 BAIL APPL. NO. 15 OF 2024 CRIME NO.206/2022 OF Kondotty Police Station, Malappuram PETITIONER/ACCUSED NO.4:

MOHAMMED SAJEER, AGED 30 YEARS S/O. MAYIN, PATTAYIL HOUSE, THAITHOTTAM, KONDOTTY P.O., MALAPPURAM, PIN - 673638 BY ADVS. MANU TOM BALAMURALI K.P.

SHAJI T.M.

RENIL IQUBAL K.

HARIPRIYA.M AMAL C. PETER RESPONDENT/COMPLAINANT:

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV.SMT.DEEPA NARAYANAN, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

Dated this the 19^th day of January, 2024 This is an application for regular bail.

2. Petitioner is the fourth accused in Crime No.206 of 2022 of Kondotty Police Station, Malappuram, alleging commission of offences punishable under Sections 21(C) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The brevity of the prosecution allegation is that on 03.04.2022 at 1.25 p.m. at Kondotty Bus stand, first and second accused persons were found to have transported 450 grams of brown sugar and said accused were funded by the third accused and the petitioner/fourth accused for commission of the offences and thereby the accused have committed the alleged offences.

4. Petitioner submits that he is in custody from

11.07.2022 and that he is totally innocent of the charges levelled against him. Petitioner further submits that the only allegation against the petitioner is that he has deposited some amount in the Bank account of the first accused.

Petitioner also submits that the petitioner and the first accused are known to each other and the petitioner has borrowed some amount for his personal purpose on different occasions from the first accused and the amount deposited is the amount towards the repayment of the debt. Petitioner further submits that the investigation is over and charge sheet has been laid and therefore, further detention of the petitioner is not required for the purpose of further investigation. He further submits that accused Nos.1 to 3 are already been released on bail.

5. Learned Public Prosecutor opposed the application mainly contending that commercial quantity of the contraband was seized from the possession of accused Nos.1 and 2 and the allegation against the petitioner is that he has funded the crime and an amount of Rs.99,000/- and 3,47,000/- has transferred to the account of the first accused. Learned Public Prosecutor further submits that the petitioner is involved in two other crimes i.e., in Crime No.818 of 2016 and Crime No.401 of 2017 registered by Kondotti Police Station and that proceedings under Section

107 Cr.P.C. was also initiated against the petitioner.

6. Heard the learned counsel for the petitioner also. 7. Learned counsel for the petitioner would submit that the Sessions Court has acquitted the petitioner in Crime No.818 of 2016 of Kondotty Police Station against the charges levelled against him. Admittedly the petitioner is in custody from 11.07.2022 and that accused Nos.1 to 3 are already been released on bail. Petitioner would further submit that even though the trial was directed to be completed within a period of six months as per Annexure I order due to non receipt of RFSL report the trial could not proceed further.

8. The Apex Court in Mohd. Muslim @ Hussain v.

State (NCT of Delhi) [2023 SCC online SC 352] held that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the Act. The Apex Court in Rabi Prakash v. The State of Odisha (SLP Crl. No. 4169 of 2023) has also reiterated that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the personal liberty must override the statutory embargo under Section 37 of