Kishan Sabha Nayak v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 BAIL APPL. NO. 802 OF 2024 ``` ``` CRIME NO.2939/2023 OF Ernakulam Town North Police Station, ``` ``` Ernakulam ``` ## **`PETITIONER/S:`** ``` KISHAN SABHA NAYAK AGED 21 YEARS S/O GADADHAR NAYAK, BADASINDHABA,CHADIAPADA, GAJAPATI, ODISHA, PIN - 761017 BY ADV V.S.THOSHIN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 802 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 802 of 2024 ----------------------------------Dated this the 2[nd] day of February, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.2939/2023 of the Ernakulam Town North Police Station, registered against him, for allegedly committing the offences punishable under Section 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested on 2.12.2023 and remanded to judicial custody. 2. The essence of the prosecution case is that: around 12.30 p.m on 2.12.2023, the accused was found in possession of 4.950 kilograms of Ganja on the side of the Kaloor – Kadavanthra road. The petitioner was 3 Bail Application No. 802 of 2024 arrested with the contraband from the spot and Rs.51,270/- was seized from his possession. Thus, the accused has committed the above offence. 3. Heard; Sri.Thoshin V.S, learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him and he has been falsely implicated in the crime. The petitioner has been in judicial custody since 2.12.2023, which is more than 62 days. The final report has not been laid. The petitioner has no criminal antecedents. The investigation in the case is practically complete. The contraband is of intermediate quantity. Therefore, the petitioner is entitled to be released on bail as contemplated under the proviso to Sub Section (2) of Section 167 of the Code of Criminal Procedure ('Code', for short). Hence, the application may be allowed. 4 Bail Application No. 802 of 2024 5. The learned Public Prosecutor opposed the application. Nonetheless, she conceded to the fact that the contraband is of intermediate quantity. The petitioner has been in judicial custody since 2.12.2023 and the final report has not been laid. She also admitted that the petitioner has no criminal antecedents. 6. Indisputably, the petitioner was arrested on 2.12.2023, the contraband that was seized from the petitioner is of intermediate quantity and the final report has not been laid. Therefore, the petitioner is entitled to compulsive bail as contemplated in the proviso to Sub Section (2) of Section 167 of the Code. 7. Dealing with an identical issue the Honourable Supreme Court in _**Satender Kumar Antil v. Central Bureau of Investigation** [(2022) 10 SCC 51]_ , has held in the following manner: _“39. S.167(2) was introduced in the year 1978, giving emphasis to the maximum period of time to complete the investigation. This provision has got a laudable object behind it, which is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society. This is also another limb of_ 5 Bail Application No. 802 of 2024 - _Art.21. Presumption of innocence is also inbuilt in this provision. An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. 40.Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by this Court in M. Ravindran v. Directorate of Revenue Intelligence [(2021) 2 SCC 485] ………………..”_ ## 8. This Court in **Azharudheen V. State of Kerala** **(2024 (1) KHC 309)** has held that once the statutory right of the accused accrues, even an oral application is sufficient to enlarge him on bail. 9. On an overall consideration of the materials placed on record, particularly taking note of the fact that the final report was not laid within the stipulated time period, I am of the view that the petitioner is entitled to be released on statutory bail as contemplated under Section 167(2) of the Code. 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) each with 6 Bail Application No. 802 of 2024 two solvent sureties each for the like sum, to the satisfaction of the jurisdictional Court, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, 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 jurisdictional Court 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 jurisdictional Court at the time of 7 Bail Application No. 802 of 2024 execution of the bond. If he has no passport, he shall file affidavit to the effect before the court below on the date of execution of the bond; - (v) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer; - (vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Ernakulam. - (vii) 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. - (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the 8 Bail Application No. 802 of 2024 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].** **sd/-** **C.S.DIAS, JUDGE** sks/2.2.24