B.A. No. 7501 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** ## **BAIL APPL. NO. 7501 OF 2022** ## **PETITIONER/ACCUSED NO.1:** SAMEER, AGED 55 YEARS S/O. HASSAN. B, KARINGAPALLY HOUSE, PAIKA, KASARGODE DISTRICT . , PIN - 686577 BY ADV P.C.MUHAMMED NOUSHIQ ## **RESPONDENTS/STATE:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 EXCISE INSPECTOR KASARAGOD EXCISE AND NARCOTIC AND SPECIAL SQUAD, KASARGODE DISTRICT, PIN - 671551 ## **OTHER PRESENT:** PP - M.C.ASHI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.A. No. 7501 of 2022 2** ## **VIJU ABRAHAM, J.** **-------------------** ## **B.A. No. 7501 of 2022** **---------------------------------Dated this the 01[st] day of November, 2022** ## **ORDER** This is an application for regular bail. 2. Petitioner is accused No. 1 in Crime No. - 8/2022 of Kasargod Excise and Narcotics Special Squad, Kasargod District alleging commission of offences punishable under Section 22 (c) , 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on the allegation that on 21.04.2022 the accused persons were arrested along with 196 gms of MDMA while they were travelling in a car bearing registration No. KL 14 N 8605. Petitioner was arrested on 21.04.2022. 3. When the matter was taken up for consideration, the learned counsel for the petitioner would submit that since he was arrested on 21.04.2022, he is entitled for being released on statutory bail on completion of 180 days which would fall on 19.10.2022. He submitted that the charge ## **B.A. No. 7501 of 2022 3** sheet was laid only on 25.10.2022. He, therefore, submitted that his bail application was pending as on 17.10.2022 and the charge sheet was not laid on or before that date, he is entitled for statutory bail. 3. Learned Public Prosecutor opposed the application for bail contending that even though a regular bail application was pending as on the date of accrual of statutory right for grant of bail, the same is not one filed under Section 167(2) CrPC and further submitted that even though regular bail application is pending, the same was moved with a request for grant of statutory bail only after filing of the charge sheet. On the basis of the same, the learned public prosecutor would submit that once the charge sheet is filed the right of the accused to seek statutory bail stands extinguished. 4. It is true that once the charge sheet is filed the right of the accused to seek statutory bail stands extinguished but the question is whether the filing of a regular bail application and the ## **B.A. No. 7501 of 2022 4** same being pending as on the date of accrual of the statutory right of bail will entitle the petitioner for grant of statutory bail. It is not in dispute that a regular bail application was filed and was pending at the time when the right for statutory bail accrued. It is also not in dispute that the final report was filed in the case after the statutory period prescribed under the NDPS Act. The Apex Court in _**Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453**_ , held that on the expiry of the statutory period, 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 furnish the bail as directed by the magistrate. The Apex Court in _**Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67**_ has held that when it comes to personal liberty touching upon the right contained in Article 21, the court cannot approach a ## **B.A. No. 7501 of 2022 5** rigid and formalistic approach. The Apex Court in _**Ravindran v. Intelligence Officer, Directorate of**_ _**Revenue Intelligence, 2020 (6) KLT 127 (SC)**_ has held that in case of any ambiguity in the construction of a penal statute, the courts must favour the interpretation which leans towards protecting the rights of the accused and held that once the accused files an application for bail under the proviso to Section 167 (2) he is deemed to have availed of his right to be released on default bail and that subsequent filing of the charge sheet will not extinguish the said right. The question further to be decided is whether a regular bail application filed under Section 439 of CrPC will amount to his preparedness to furnish bail as stated in Section 167 (2) (a) (ii) of CrPC. In _**Subhash Bahadur @ Upender v. The State (NCT of Delhi), MANU/DE/1997/2020**_ , the Delhi High Court was considering the question as to whether an application for bail under Section 439 CrPC would be sufficient for a court to construe that the accused ## **B.A. No. 7501 of 2022 6** had availed of his right to be released on bail under the provisions of Section 167 (2) CrPC. The Delhi High Court after considering the various judgments of the Apex Court in this regard held that the petitioner therein is entitled to default bail since he has moved an application for bail and offered to abide by the terms and conditions of the bail and non-mentioning of the provisions of Section 167(2) of CrPC is of no consequence and also held that a bail application filed on the expiry of the stipulated period for filing charge sheet can be considered as an application for bail under proviso to Section 167 (2) CrPC since it does indicate that accused is prepared to furnish bail. It is not in dispute that a regular bail application was pending before this court when the date of grant of statutory bail accrued and therefore based on the dictum laid down in the judgments cited supra, I am of the opinion that the petitioner could be given the benefit of statutory bail. It is seen that A2, A3 and A4 were granted statutory bail by the ## **B.A. No. 7501 of 2022 7** Sessions Court. It is seen that the petitioner is not involved in any other criminal cases. In view of the same, I am inclined to grant bail to the petitioner on the following conditions. _(i) The petitioner shall execute a bond for a sum of Rs. 1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court, one of the surety shall be the parent or the close relative of the petitioner;_ _(ii) The petitioner shall appear before the investigating officer in Crime No. 8/2022 of Kasargod Excise and Narcotics Special Squad, Kasargod District on every Saturday at 11 am, until completion of the trial;_ _(iii) The petitioner shall not attempt to interfere with the investigation or to influence or intimidate the defacto complainant or any witness in Crime No. 8/2022 of Kasargod Excise and Narcotics Special Squad, Kasargod District ;_ _(iv) The petitioner shall not leave the State without obtaining prior permission from the jurisdictional Court;_ _(v) The petitioner shall surrender his passport before the jurisdictional court. If the petitioner do not have passport, he_ ## **B.A. No. 7501 of 2022 8** _shall execute affidavit to that effect and file the same before the said court within seven days of release on bail; (vi) The petitioner shall not involve in any other crime while on bail._ If any of the aforesaid conditions are violated, the investigating officer in Crime No.8/2022 of Kasargod Excise and Narcotics Special Squad, Kasargod District may file an application before the jurisdictional court, for cancellation of bail. sd/- ## **VIJU ABRAHAM,JUDGE** pm