EBY v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 BAIL APPL. NO. 416 OF 2024 CRIME NO.951/2023 OF Muvattupuzha Police Station, Ernakulam AGAINST THE ORDER IN SC 1270/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR / I ADDITIONAL MACT, NORTH PARAVUR ``` ## **`PETITIONER/1ST ACCUSED:`** ``` EBY, AGED 34 YEARS S/O ELIYAS.R/O.- THOTTIMATTAHIL HOUSE, KADAVOOR, ERNAKULAM DISTRICT, PIN - 686671 ``` ``` BY ADVS. SADIQALI.M DHANYA S NAIR DELLA ABRAHAM NIMA MERIYAM KOSHY ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT.NEEMA T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.416 of 2024 2 Dated this the 6[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 first accused in Crime No.951/2023 of the Muvattupuzha Police Station, Ernakulam, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 20(b) (ii) (B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 31.05.2023. 2. The essence of the prosecution case is that; on 31.05.2023 at around 10.50 a.m., the accused 1 and 2 were found in possession of 3.225 kg of Ganga in a partly constructed shopping complex situated near the KSRTC Stand, Ramamngalam Kara, Marady Village. Thus, the accused have committed the above offence. B.A No.416 of 2024 3 3. Heard Sri. Sadiqali.M, learned counsel appearing for the petitioner and Smt.Neema. T.V, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. Even going by the prosecution case, only 3.225 kg of Ganja was allegedly seized from the possession of the petitioner. The said contraband is only of an intermediate quantity. The petitioner has been in judicial custody since 31.05.2023, which is more than 250 days. The investigation in the case is complete, the recovery has been effected and the final report has been laid. The 2[nd] accused has been granted statutory bail by the Court of Session, Ernakulam in Crl.MC.No.2174/2023. Since the petitioner was arrested along with the 2[nd] accused on the same day, B.A No.416 of 2024 4 the petitioner is also entitled to the benefit of proviso to Sub Section (2) of Section 167 of the Code. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the petitioner is a person with criminal antecedents. The petitioner is involved in seven other crimes, of which three cases are under the NDPS Act. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Nonetheless, she conceded to the fact that the 2nd accused has been released on statutory bail, that the investigation in the case is complete, and that the final report has already been laid before the Court of Session, Ernakulam. 6. The petitioner, along with the 2[nd] accused, Libin, were allegedly found in possession of 3.225 kg of Ganga, and they were arrested from the spot on 31.05.2023. On a reading of the order in Crl.MC.2174/2023, passed by B.A No.416 of 2024 5 the Court of Session, Ernakulam, shows that the 2nd accused was enlarged on statutory bail on the ground that the final report was not laid within the statutory time. However, since the petitioner did not file an application for bail within the stipulated time period, he was not enlarged on bail. Now, the petitioner has filed the present application. If that be the case, I am of the definite view that, going by the law laid down by the Honourable Supreme Court in **Satender Kumar Antil v. Central Bureau of Investigation [(2022) 10 SCC 51]** and this Court in **Azharudheen V. State of Kerala (2024 (1) KHC 309),** the petitioner is also entitled to be released on statutory bail since the Investigating Officer has not filed the final report within the stipulated time period of 60 days. 7. Notwithstanding the above finding, I find that the allegation against the petitioner and the 2nd accused is that they were found in possession of 3.225 kg of Ganja, B.A No.416 of 2024 6 which is admittedly of an intermediate quantity. The main opposition of the prosecution is that the petitioner has criminal antecedents since he is involved in seven other cases. 8. On an evaluation of the antecedents of the petitioner, it is seen that he is an accused in Crime No.834/2018 of the Pothanikad Police Station and Crime No.1484/2017 of Kuruppampady Police Station, both registered against him for allegedly committing the offence under Section 27 of the NDPS Act, i.e., he was found in possession of a small quantity of contraband. In respect of the other four crimes, it is seen that two of the crimes are for allegedly committing an offence under Section 279 of the IPC, and the other two crimes are for allegedly committing offence under Section 118(A) of the Kerala Police Act. The only crime that remains is Crime No.143/2018 of the Palakkad Police Station for allegedly committing an offence under Section 20(b)(ii)(B) of the B.A No.416 of 2024 7 NDPS Act. 9. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the bar, particularly taking note of the fact that the petitioner has been in judicial custody for the last 250 days, that the rigour under Section 37 of the NDPS does not apply to the facts of the case because this contraband is not of a commercial quantity, that the investigation in the case is complete and that the final report has been laid, I am of the definite view that the petitioner’s conditioned detention is unnecessary. Hence, I am inclined to release the petitioner on bail. 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: B.A No.416 of 2024 8 (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of three months or till the final report is filed, 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 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 B.A No.416 of 2024 9 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, given by the petitioner B.A No.416 of 2024 10 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/- **C.S.DIAS, JUDGE** mtk/06.02.24