Krishnaj v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 10825 OF 2023`** ## **`CRIME NO.310/2023 OF Nedupuzha Police Station, Thrissur`** ## **`PETITIONER/S:`** ``` KRISHNAJ, AGED 28 YEARS ODATTIL HOUSE, GB-3, CHELOOR COUNTRY COURT, AYYANTHOLE P.O, THRISSUR, KERALA, PIN - 680003 BY ADVS. SARATH BABU KOTTAKKAL ARCHANA VIJAYAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.NEEMA.T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. NO.10825 OF 2023 2 ``` ## **C.S.DIAS,J** ## **======================** ## **BA No.10825 of 2023** ## **-----------------------------------** ## **Dated this the 13[th] day of February, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 9[th] accused in Crime No.310/2023 of the Nedupuzha Police Station, Thrissur, registered against the accused (ten in number) for allegedly committing the offences punishable under Sections 20(b)(ii) (C) and 27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 15.7.2023. 2. The prosecution case, in brief, is that: on 5.5.2023, at about 00.00 hours, the police party, on the basis of a secret information, conducted a search and found the accused 1 to 4 in possession of 220.910 kgms of ganja in a car at a place named Pattala Kinar in the road ## **`B.A. NO.10825 OF 2023 3`** from Kuriachira to Chiyyaram Althara junction, which was procured from Odisha making use of the funds advanced by the accused 5 to 7, 9 and 10. Thus, the accused have committed the above offences. 3. Heard; Sri. Sarath Babu Kottakkal, the learned counsel appearing for the petitioner and Smt. Neema T.V, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is absolutely no material to connect the petitioner with the offences alleged against him. The petitioner has been in judicial custody since 15.7.2023. The accused 1 to 4 were enlarged on statutory bail by Annexures A2 and A3 orders by the Court of Session, Thrissur and the accused 5 and 7 were enlarged on bail by this Court as per Annexure A4 order and the order in BA No.10723/2023 on the specific finding that there was ## **`B.A. NO.10825 OF 2023 4`** nothing on record to connect the said accused with the commission of the offences. Now, the Investigating Officer has laid Annexure A7 final report before the jurisdictional Court, which also does not show that the petitioner has any role in the crime. The investigation in the case is practically complete and recovery has been effected. Since all the other accused have been released on bail, the petitioner is also entitled to be released on bail. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that there is a specific allegation against the petitioner that he financed the transaction. The Investigating Officer has found that the petitioner had transferred an amount of Rs.2,50,000/- to the bank account of the sister of the third accused, who in turn transferred the money to the account of the tenth accused. The accused 1 to 4 were granted compulsive bail and accused 5 and 7 were released on bail by this Court on the finding that there was nothing to establish ## **`B.A. NO.10825 OF 2023 5`** their connection with the crime. The accused cannot seek parity with the other accused who have already been released on bail. Since Sec.27(A) has also been incorporated, the petitioner may not be released on bail. Hence, the application may be dismissed. Nonetheless, she conceded to the fact that the petitioner has no criminal antecedents and the investigation in the case is complete. 6. On going through the materials placed on record, it is evident that the accused 1 to 4 were released on statutory bail by the Court of Session as per Annexures A2 and A3 orders. Likewise, the accused 5 and 7 were released on bail by this Court as per Annexure A4 order and the order in BA No.10723/2023. 7. When the bail application came up for consideration on 25.1.2024, this Court, taking note of the fact that the accused 1 to 4 were released on statutory bail and that the Investigating Officer had not invoked Sec.36A(4) of the NDPS Act, directed the District Police ## **`B.A. NO.10825 OF 2023 6`** Chief to file a report explaining the reason why the said provision was not invoked. 8. Pursuant to the above order, the District Police Chief has filed a report dated 2.2.2024 stating that on verifying the case diary it is understood that the Investigating Officer named, Nelson C.S, Sub Inspector of Police, Nedupuzha Police Station, has not made any effort to arrest the tenth accused. He filed the final report after 186 days of the registration of the crime. He failed to file a report before the jurisdictional Court for enlargement of time to complete the investigation as contemplated under Sec.36A(4) of the NDPS Act. The application filed by the petitioner was rejected by the Court of Session as per the common order in Crl M.P No.5989/2023 in SC No.1195/2023. After the crime review meetings, specific directions have been issued to the Investigating Officer and an explanation has been called from him. Necessary departmental proceedings would be initiated against him for the laches on his part. ## **`B.A. NO.10825 OF 2023 7`** 9. On a perusal of the materials placed on record, especially Annexure A7 final report that has been laid by the Investigating Officer, it is seen that the allegation made against the petitioner is that he had sold his vehicle and received an amount of Rs.2,50,000/- which he allegedly transferred to the bank account of the sister of the third accused. Thereafter, the said sister transferred the amount to the bank account of the tenth accused. However, other than for the above assertion, prima facie, there is nothing on record to establish that the petitioner has committed the offence under Sec.27(A) of the NDPS Act. 10. After bestowing my anxious consideration to the facts, materials placed on record , rival submissions made across the Bar, especially after taking note of the fact that the accused 1 to 4 , 5 and 7 have already been released on bail, that there has been willful laches and negligence on the part of the Investigating Officer by not seeking for enlargement of time as contemplated under ## **`B.A. NO.10825 OF 2023 8`** Sec.36A(4) of the NDPS Act and also that prima facie there is no material to substantiate that the petitioner has committed the offences alleged against him, I am satisfied that there are reasonable grounds to hold, for the purpose of bail, that the petitioner has not committed the offences and since the petitioner has no criminal antecedents, there is no likelihood of him committing a similar offence. Consequently, the rigour under Sec.37 of the Act stands diluted . Hence, I hold that the petitioner is entitled to be released on bail. I take the above view following the decision in **Dheeraj Kumar Shukla v. The State of Uttar Pradesh [2023 KHC 6545]** . 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.10825 OF 2023 9`** (i) The petitioner shall 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 they are 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 ## **`B.A. NO.10825 OF 2023 10`** 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 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/- sks/13.2.2024 **C.S.DIAS, JUDGE**