Brijesh Decruz v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3112 OF 2024 ``` ``` CRIME NO.996/2023 OF MALAPPURAM POLICE STATION, MALAPPURAM ``` ``` AGAINST THE ORDER DATED 13.03.2024 IN CRMP NO.213 OF 2024 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI ``` ``` PETITIONER: ``` ``` BRIJESH DECRUZ, AGED 41 YEARS S/O.ANTONY DECRUZ, SIYAN VILLA, THAMARAKKUZHI, MALAPPURAM DISTRICT, PIN – 676504 ``` ``` BY ADV BABU S. NAIR ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682031 2THE STATION HOUSE OFFICER , MALAPPURAM POLICE STATION, MALAPPURAM DISTRICT, PIN – 676505 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3112/2024_ _-:2:-_ _Dated this the 12[th] day of June, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.996/2023 of the Malappuram Police Station, Malappuram, which is registered against the accused (five in number) for allegedly committing the offences punishable under Sections 20(b)(ii)(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short, ‘NDPS Act’). The petitioner was arrested on 25.07.2023. 2. The crux of the prosecution case is that: on 21.07.2023, the accused hatched a conspiracy in a lodge in Andhra Pradesh and they transported 20.68 Kgs. of Ganja to Kerala and the same was seized from the house of the first accused where the accused Nos.1 to 3 were seen. The accused Nos.1 to 3 were arrested on the spot with the contraband article. The _B.A.No.3112/2024_ _-:3:-_ contraband was supplied by accused Nos.4 & 5. Thus, the accused have committed the above offences. 3. Heard; Sri. Babu S. Nair 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 him. There is no against incriminating material to substantiate that the contraband was seized from the house of the petitioner. The investigation in the case is complete, and the final report has been laid as early as on 12.01.2024. The petitioner has been in judicial custody for the last 11 months. There is no likelihood of the trial in the case being completed in the near future. The contraband involved in the case is just touching the commercial quantity mark. This has only happened because the Investigating Officer has weighed the bags also to _B.A.No.3112/2024_ _-:4:-_ arrive at the said figure. If the weight of the bags are deducted, the contraband would be of intermediate quantity. Therefore, the rigour under Section 37 of the NDPS Act will not be attracted to the facts of the case. There is nothing to show that there was a conspiracy hatched between the accused, so as to incorporate Section 29 of the NDPS Act. Initially, when the case was registered for the offence Section 20(b)(ii)(C) of the NDPS Act was incorporated. All the above circumstances substantiate that the petitioner has diluted the rigour under Section 37 of the NDPS Act. The petitioner does not have criminal antecedents. Therefore, he may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter-alia, contending that the accused Nos.1 to 5 had hatched a conspiracy and had brought the contraband from the State of Andhra _B.A.No.3112/2024_ _-:5:-_ Pradesh in three packets. The mobile phone conversations unveil the conspiracy. The contraband was seized from the residence of the first accused. As the contraband involved in this case is of a commercial quantity, the rigour under Section 37 of the NDPS Act applies. If the petitioner is let off on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that he, along with accused Nos.2 to 5 had hatched a conspiracy and brought 20.68 Kgs. of Ganja from the State of Andhra Pradesh. The contraband was seized from the residence of the petitioner. The prosecution alleges that there are mobile phone conversations to establish the conspiracy angle. The fact remains that the contraband involved in the case has touched the commercial quantity mark, i.e., 20.68 Kgs. of ganja. _B.A.No.3112/2024_ _-:6:-_ 7. Indisputably, the petitioner does not have criminal antecedents for committing a similar offence. The petitioner has been in judicial custody for the last 11 months. True, the rigour under Section 37 of the NDPS Act applies to the facts of the case, since the contraband is of a commercial quantity. But, I find sufficient force in the contention of the learned counsel for the petitioner that the contraband was weighed along with its covers, which is one of the reasons for the contraband having touched the commercial quantity weight. Although that is a matter of trial, taking into account the fact that the petitioner has been in judicial custody for the last more than 11 months, there is no likelihood of the trial in the case being completed in the near future, and the petitioner does not have criminal antecedents, I am satisfied that the petitioner has diluted the rigour under Section 37 of the NDPS Act. _B.A.No.3112/2024_ _-:7:-_ 8. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the contraband allegedly seized from the accused is just touched the commercial quantity mark, that the petitioner does not have criminal antecedents of similar nature, that the petitioner has been in judicial custody for the last 11 months, that the investigation in the case is practically complete, and that the final report has been laid, I am satisfied that the application is to be allowed. 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 _B.A.No.3112/2024_ _-:8:-_ 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; - (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. _B.A.No.3112/2024_ _-:9:-_ - (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, 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** DST/12.06.24 //True copy// P.A. To Judge