Bail Applications Nos. 9908/2022 & 5991/2023, Jayachandran Nair and Krishna Yadav v. State of Kerala

BA Nos.9908/2022 & 5991/2023 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` TUESDAY, THE 26THDAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 BAIL APPL. NO. 5991 OF 2023 ``` ``` CRIME NO.10/2020 OF TRIVANDRUME.E., THIRUVANANTHAPURAM SC 553/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, THIRUVANANTHAPURAM / III ADDITIONAL MACT CRMP 2142/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, THIRUVANANTHAPURAM / III ADDITIONAL MACT PETITIONER/2ND ACCUSED: ``` ``` KRISHNA YADAV ``` ``` S/O MOTTI YADAV, OLD SAHEB GANJI DESOM, SAHEB GANJ VILLAGE, SAHEB GANJ DISTRICT, PIN - 816109 ``` ``` BY ADVS. BIJU .C. ABRAHAM THOMAS C.ABRAHAM ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SENIOR PUBLIC PROSECUTOR SMT.T.V.NEEMA ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.09.2023, ALONG WITH Bail Appl..9908/2022, THE COURT ON 26.09.2023 DELIVERED THE FOLLOWING: ``` BA Nos.9908/2022 & 5991/2023 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` TUESDAY, THE 26THDAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 ``` ``` BAIL APPL. NO. 9908 OF 2022 ``` ``` CRIME NO.10/2020 OF Trivandrum E.E., Thiruvananthapuram AGAINST THE ORDER/JUDGMENT SC 553/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, THIRUVANANTHAPURAM / II ADDITIONAL MACT ``` ``` Bail Appl. 902/2021 OF HIGH COURT OF KERALA PETITIONER/4TH ACCUSED: ``` ``` JAYACHANDRAN NAIR AGED 55 YEARS ABHAYAVILLA VEEDU, VIII/137 A, AZHOOR GRAMA PANCHAYAT, EDAYILTHU DESAM, MUTTAPPALAM, AZHOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANTHAPURAM, PIN - 695305 BY ADVS. M.J.SANTHOSH ARUN ANTONY (K/1053/2011) ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SENIOR PUBLIC PROSECUTOR SRI.P.G. MANU ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.09.2023, ALONG WITH Bail Appl..5991/2023, THE COURT ON 26.09.2023 DELIVERED THE FOLLOWING: ``` BA Nos.9908/2022 & 5991/2023 3 ## **MOHAMMED NIAS C.P., J** **.........................................................…………………...** **Bail Application Nos. 9908 of 2022 & 5991 of 2023** **.........................................................…………………...** Dated this the 26[th] September, 2023 ## **ORDER** These applications are filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail. 2. B.A.No.9908/2022 is filed by accused No.4 and B.A.No.5991 of 2023 is filed by accused No.2 in Crime No.10/2020 of Excise Enforcement & Anti Narcotic Special Squad, Thiruvananthapuram, for having committed offences punishable under Sections 20(b)(ii)(C), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). 3. The prosecution case is that, at 1.30 p.m. on 6-9-2020, the Excise Inspector and party of Excise Enforcement and Anti-Narcotic Special Squad, Thiruvananthapuram, acting on secret information, seized 501.5 kg of dry ganja which was being transported by accused Nos.1 and 2 from Andhra BA Nos.9908/2022 & 5991/2023 4 Pradesh to Kerala in a National Permit container lorry bearing Regn. No.AP29-TB-3207. 4. I have heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. The learned counsel for the petitioner in BA No.9908 of 2022 argues that he is the 4th accused and has been under judicial custody since 11.9.2020. Though the allegations against the first and the second accused were that they were found in possession of 500 kg of Ganja, the only allegation against the petitioner is that he had arranged a godown to keep the contraband and for that purpose and that there were call contacts with the accused. He also points out that this Court in O.P(Crl)No.419/2021 had directed to dispose of the case within six months as per the order dated 13.01.2022. Despite that, the trial has not progressed. It is also pointed out that the petitioner has no criminal antecedents. He also relies on the judgments of the Supreme Court in **Dheeraj Kumar Shukla v. State of Uttar Pradesh** ( **SLP Criminal No.6690/2022** ) and **MD Raja and another v. State of West Bengal (SLP Criminal No.6690/2022)** and of this Court in **Banash Basheer v. State of Kerala (B.A.No.5370/2023)** , **Siddarth v. State of Kerala and another (B.A.No.4109/2023)** and **Fasil v. State of Kerala [2023 (3) KHC 212]** that followed **Dheeraj Kumar Shukla** (supra). BA Nos.9908/2022 & 5991/2023 5 He would contend that the petitioner herein is similarly situated as that of the accused in those cases. 6. Though the Prosecutor opposed the bail application, having gone through the judgments cited on behalf of the learned counsel petitioner, I feel there is no reason why similar treatment accorded to the accused in those cases should not be granted to the petitioner herein. True that commercial quantity is involved in relation to which crime the petitioner is accused, however, taking note of the above judgments, the absence of criminal antecedents and the fact that the petitioner has been in custody since 11.9.2020, as held in the above cases, the rigour of Section 37 of the NDPS Act has to be dispensed with at this stage, more so when the disposal of the case has not happened as directed by this Court in O.P(Crl) No.419/2021. In such circumstances, without expressing anything on the merits of the case, BA No.9908 of 2022 is allowed. 7. With respect to accused No.2, who has filed BA No.5991 of 2023, it is the argument of the learned counsel for the petitioner that he is placed on the same footing as that of the first accused, who has been granted bail by this Court by orders in B.A No.1452 of 2023 dated 22.8.2023. After considering all the relevant details, this Court found that merely because of the reason that there were regular telephone calls between the parties during the period, it cannot be concluded that the petitioner was travelling in BA Nos.9908/2022 & 5991/2023 6 the said vehicle with the knowledge that the contraband articles were being carried in the vehicle. It is to be noted that the only allegation against accused No.1 and the present accused was the calls made between A4 and A5. In the instant case, the arrest of the petitioner was on 06.9.2020, and there are no criminal antecedents against the petitioner. As held in the above cases cited supra, the rigour of Section 37 of the NDPS Act has to be dispensed with at this stage, more so when the disposal of the case has not happened as directed by this Court in O.P(Crl) No.419/2021. In such circumstances, without any expression on the merits of the case, the application seeking bail is allowed. In the result, B.A.Nos.9908/2022 and 5991/2023 are allowed, and the petitioners in both bail applications are released on bail subject to the following conditions:- 1. The petitioners shall be released on bail on executing separate bonds for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court; 2. In B.A.No.5991 of 2023, one of the sureties must be from the State of Kerala; 3. The petitioners shall report before the Investigating Officer every Saturday between 9 a.m. and 10 a.m. till the final report is laid; BA Nos.9908/2022 & 5991/2023 7 4. The petitioners shall furnish their residential address, including mobile phone numbers, to the investigating officer as well as to the court. 5. The petitioners shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses; 6. The petitioners shall not be involved in any other crime while on bail. 7. If any of the conditions are violated, the court concerned will be empowered to take steps for cancellation of bail as per law; Sd/- **MOHAMMED NIAS C.P., JUDGE** okb/ BA Nos.9908/2022 & 5991/2023 8 ## **`APPENDIX OF BAIL APPL. 9908/2022`** ``` PETITIONER ANNEXURES ``` |`Annexure-A1`|`THE TRUE COPY OF ORDER OF COURT IN BAIL`| |---|---| ||`APPLICATION 902/2021 DATED 22/4/2021`| |`Annexure-A2`|`THE TRUE COPY OF ORDER OF COURT IN W,P. (C)`| ||`NO. 17845/2021 DATED 8/9/2021`| |`Annexure-A3`|`THE TRUE COPY OF ORDER OF COURT IN O.P.`| ||`(CRL.) NO.419/2021 DATED 13/1/2022`| |`Annexure-A4`|`THE TRUE COPY OF DAILY STATUS PROCEEDINGS OF`| ||`ADDITIONAL SESSIONS COURT-V TRIVANDRUM`| ||`DOWNLOADED FROM E-COURTS DATED 01/07/2022`| |`Annexure-A5`|`THE TRUE COPY OF DAILY STATUS PROCEEDINGS OF`| ||`ADDITIONAL SESSIONS COURT-V TRIVANDRUM`| ||`DOWNLOADED FROM E-COURTS DATED 26/9/22`| |`Annexure-A6`|`THE TRUE COPY OF PROCEEDINGS OF REGISTRAR`| ||`GENERAL OF HIGH COURT OF KERALA DATED`| ||`1/12/2022`| |`Annexure-A7`|`THE TRUE COPY OF ORDER OF COURT IN O.P.`| ||`(CRL) NO.419/2021 DATED 15/11/2022`| BA Nos.9908/2022 & 5991/2023 9 ## **`APPENDIX OF BAIL APPL. 5991/2023`** ``` PETITIONER ANNEXURES Annexure 1A TRUE COPY OF THE ORDER DATED 1/7/2023 THUS PASSED BY THE COURT OF THE ADDITIONAL SESSIONS JUDGE VI, THIRUVANANTHAPURAM ```