Bibin Thomas v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5614 OF 2024 ``` ``` CRIME NO.670/2023 OF POTHANIKADU POLICE STATION, ERNAKULAM IN SC NO.591 OF 2024 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR PETITIONER/3RD ACCUSED: ``` ``` BIBIN THOMAS AGED 36 YEARS ``` ``` S/O THOMAS, KANNANKULATH HOUSE, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, KERALA (IN JUDICIAL CUSTODY), PIN - 686671 BY ADVS. SRI.P.CHANDY JOSEPH SRI.C.K.VIDYASAGAR ``` ## **`RESPONDENTA/STATE:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 STATION HOUSE OFFICER POTHANIKAD POLICE STATION ERNAKULAM DISTRICT, PIN – 686671 BY SR.PP.SMT.SEETHA S.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5614 of 2024 ## -:2:- ## **O R D E R** Dated this the 23[rd] day of July, 2024 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the 3[rd] accused in Crime No.670/2023 of Pothanikkadu Police Station, Ernakulam, registered against the accused (4 in number) for allegedly committing the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). Subsequently, the offences under Sections 27A and 29 of the Act were incorporated. The petitioner was arrested on 15.11.2023. 2. The gist of the prosecution case is that: on 13.11.2023, at around 17.45 hours, the Detecting Officer on getting a secret information, conducted a search in the residence of the 1[st] accused and seized 20.144 kilograms of ganja. The 1[st] accused was ## B.A.No.5614 of 2024 -:3:- subsequently arrested. During the course of interrogation, it is revealed that the accused 2 to 4 were involved in the crime. Accordingly, the other accused were arrested. Thus, the accused have committed the above offences. 3. Heard; Sri.P. Chandy Joseph, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The petitioner has been falsely implicated in the crime solely on the basis of the confession statement made by the 1[st] accused, which is inadmissible in evidence in view of the law laid down by the Honourable Supreme Court in **Tofan Singh v. State of Tamil Nadu** [2020 (2) KLD 781]. This Court taking into consideration the above aspects has enlarged the 2[nd] accused on bail, as per the order dated 05.07.2024 in B.A.No.4949/2024. In fact, the B.A.No.5614 of 2024 ## -:4:- petitioner is better placed than the 2[nd] accused in the crime. Going by the prosecution case, the contraband was only seized from the residence of the 1[st] accused. That too, then he was not at the place of occurrence. The contraband involved in the case is just touching the commercial quantity. The weight of the covers in which the contraband were found were not deducted. If that was done the contraband would have been of an intermediate quantity. The petitioner does not have any criminal antecedents. Even if the allegations are taken on their face value, the offence only lies against the 1[st] accused. The petitioner has been languishing in jail for the last 8 months, the investigation in the case is complete, and the final report has been laid on 30.3.2024. Hence, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to prove the petitioner’s involvement in the B.A.No.5614 of 2024 ## -:5:- crime. In fact, the contraband involved in the case is of a commercial quantity. Moreover, Section 27A of the Act has been incorporated. There has been financial transactions between the accused. The petitioner was travelling with the 1[st] accused in the same vehicle. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Nonetheless, she did not dispute the fact that the 2[nd] accused has been enlarged on bail by this Court as per the order in B.A.No.4949/2024 and that the petitioner does not have any criminal antecedents. 6. The prosecution allegation is that, the Detecting Officer had seized 20.144 Kg of ganja from the residence of the 1[st] accused. During the course of the interrogation of the 1[st] accused, it is revealed that the petitioner is also involved in the case. Accordingly, the petitioner was implicated in the crime and he was arrested. The fact remains that the petitioner has been in judicial custody for the last 8 months, investigation B.A.No.5614 of 2024 ## -:6:- in the case is complete and the final report has been laid, and further the petitioner does not have any criminal antecedents. 7. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner has been allegedly implicated on the basis of the confession statement made by the first accused, the contraband involved in the case has just touched the commercial quantity, the investigation in the case is complete, and the final report has been laid, the 2[nd] accused has been granted bail by this Court as per the order in B.A.No.4949/2024, and further the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner has diluted the rigour under Section 37 of the Act so as to enlarge him on bail. Hence, I am inclined to allow the application. ## B.A.No.5614 of 2024 -:7:- In the result, the application is allowed, by directing the petitioner to be released on bail on him 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 alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in the crime. (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 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; ## B.A.No.5614 of 2024 -:8:- (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 be filed and entertained before the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, B.A.No.5614 of 2024 -:9:- 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]. (viii) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- ## **C.S.DIAS,JUDGE** ``` NAB ```