BA No. 707 of 2024

1 BA No. 707 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 707 OF 2024`** ``` CRIME NO.1034/2023 OF Mankara Police Station, Palakkad ``` ## **`PETITIONER/S:`** ``` KRISHNADASAN.P.S AGED 41 YEARS SON OF SWAMINATHAN, PLAKKAL HOUSE, MANNUR WEST, MANNUR (P.O), PALAKKAD DISTRICT., PIN - 678642 ``` ``` BY ADV NIREESH MATHEW ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.NEEMA.T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No. 707 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No. 707 of 2024** **----------------------------------Dated this the 5[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.1034/2023 of the Mankara Police Station, Palakkad, registered against the accused, for allegedly committing the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner had surrendered on 06.12.2023. 2. The gist of the prosecution case is that; on 30.11.2023, at about 17.30 hours, the accused 1 and 2 were found in possession of 15.058 kg of Ganja and Rs.2,50,000/- in house No.VII/288 of Mankara Panchayat. The accused 3 and 4 3 BA No. 707 of 2024 escaped from the scene of occurrence on seeing the police party. Thus, the accused have committed the above offence. 3. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime based on the alleged confession made by the second accused. There is nothing on record to connect the petitioner for committing the above offence. Notwithstanding the other contentions that have been raised in the bail application, the final report has not been laid. Therefore, the petitioner is entitled to compulsive bail in view of the proviso to subsection (2) of Section 167 of the Code of Criminal Procedure. Hence, the bail application may be allowed. 4 BA No. 707 of 2024 5. The learned Public Prosecutor opposed the bail application. She contended that the petitioner has criminal antecedents. The petitioner’s earlier application for bail was dismissed by this Court as per Annexure-2 order on the specific ground that the petitioner was having criminal antecedents. Nonetheless, she conceded to the fact that the offence alleged against the petitioner is punishable for a period of less than ten years and that the Investigating Officer has not laid the final report till date. 6. Sub-section (4) of Section 36A of the Act prescribes that, for offences punishable under Sections 19, 24 or 27A or for offences involving commercial quantity the references under subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 shall be 180 days instead of 90 days. 5 BA No. 707 of 2024 7. In the case on hand, the petitioner is alleged to have committed the offences under Section 20(b)(ii)(B) of the Act for allegedly being in possession of 15.058 grams of ganja. Indisputably, the said contraband is of intermediate quantity. Therefore, Sec.36A of the Act does not apply and only proviso to sub-sec (2) of Sec.167 of the Code of Criminal Procedure applies. Admittedly, the petitioner was arrested on 6.12.2023, which is more than 60 days and the final report has not been laid. 8. The Constitution Bench of the Honourable Supreme Court in **Sanjay Dutt v.State through C.B.I., Bombay [(1994) 5 SCC 410]** after laying down the principles, recorded its conclusions, of which conclusion 53 (2) (b) is relevant for this case, which is reproduced below: "53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from 6 BA No. 707 of 2024 the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." 9. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya v. State of Maharashtra** **[(2001) 5 SCC 453]** , reiterated the legal proposition in **Sanjay Dutt v.State** through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus: " 13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) ## 10. As the petitioner has already been in judicial custody for the last 61 days and the Final Report has not been laid till 7 BA No. 707 of 2024 date, I hold that the petitioner is entitled to be released on statutory bail as it is his indefeasible right under Section 167(2) of the Code. Hence, I allow the bail application. 11. In the result, the application is allowed, by directing the petitioner to be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from 8 BA No. 707 of 2024 disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law; (vi) Applications for deletion/modification of the bail conditions shall also be filed and entertained by the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter 9 BA No. 707 of 2024 and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- sks/5.2.2024 **C.S.DIAS, JUDGE**