High Court of KeralaSingle Judge2024-04-23Bail granted; accused released on bail with con...

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Case / Petition Number:BAIL APPL. NO. 3377 OF 2024

Neutral Citation:null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-04-23
Court Decision / Holding: The application is allowed. The petitioners are to be released on bail on each executing a bond for Rs. 1,00,000 with two solvent sureties of like amount, subject to conditions (i)-(viii) including: appearance before the Investigating Officer on specified days; no inducement or tampering; no commission of offences while on bail; surrender of passports; territorial limits; power to cancel bail on violation; and provision for modification of bail conditions. The court notes the contraband is of intermediate quantity, absence of antecedents, completed investigation, and recovery, and relies on established principles to grant bail.
Final Disposition: Bail granted; accused released on bail with conditions.

Parties to the Case

Appellants / Petitioners

Nirmal Mali
Bhakti Nayak
Ashish Nayak (also known as Shilu Sagar Nayak)

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• N. A. Shafeek

Counsels for Respondents

• Sri C. S. Hrithwik

Case Synopsis & Summary

This Bail Application before the Kerala High Court concerns three accused in Crime No. 521/2024 of the Ernakulam Central Police Station who were arrested for allegedly possessing 11.632 kg of ganja, a narcotic drug, in a lodge in Ernakulam. The offences alleged are under Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioners, Nirmal Mali, Bhakti Nayak, and Ashish Nayak (also known as Shilu Sagar Nayak), represented by Adv. N. A. Shafeek, sought bail under Section 439 CrPC after approximately sixty days in custody; the contraband quantity is described as intermediate and the petitioners have no prior criminal record. The prosecution, led by the State of Kerala and the Public Prosecutor, contended that investigation was ongoing and that release on bail could risk repetition of offences and the flight risk due to lack of roots in Kerala, given their Odisha origin. After hearing, the learned judge noted that the case record shows completion of investigation, recovery of contraband, and no demonstrated criminal antecedents. Citing Hussainara Khatoon and other authorities, the court held that detention beyond this period was unnecessary and granted bail, imposing standard conditions including bond, sureties, regular appearances, non-interference, no offense on bail, passport surrender, and territorial limits, with power to revoke bail on violation. The order directs release on bail and permits ongoing investigation, with further monitoring and for the Investigating Officer to effect recoveries if necessary under established principles.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

Legal Doctrines & Maxims

Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81]

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners assert total innocence, contending they have been falsely implicated with no material linking them to the contraband. They have been in judicial custody for about sixty days; the investigation is nearly complete; they have no criminal antecedents; the ganja quantity is intermediate, and recovery has been effected. They request bail on balance of convenience and to prevent unnecessary detention.

Contentions of Respondents

The State argues ongoing investigation and risk of recurrence if released. It highlights flight risk due to Odisha origins, lack of roots in Kerala, and the possibility of tampering with witnesses or evidence, justifying continued detention or denial of bail.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Hussainara Khatoon (I) v. Home Secy., State of Bihar	[(1980) 1 SCC 81]	Positive	Used as a settled principle that lack of roots in a state should not automatically deny bail, supporting release of petitioners.
Sushila Aggarwal v. State (NCT of Delhi) and another	[2020 (1) KHC 663]	Positive	Cited to justify that the Investigating Officer may continue recoveries and investigations even while bail is in effect, as laid down by the Supreme Court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3377 OF 2024 ``` ## **`CRIME NO.521/2024 OF ERNAKULAM CENTRAL POLICE STATION,`** ## **`ERNAKULAM`** ## **`PETITIONERS/ACCUSED NO.1 TO 3:`** - **`1 NIRMAL MALI AGED 28 YEARS S/O MEDA MALI, CHANDIPUT, CHANDIPUT P.O., GAJAPATI, ODISHA, PIN – 759024.`** - **`2 BHAKTI NAYAK AGED 28 YEARS S/O SUDHIR NAYAK, CHANDIPUT, CHANDIPUT P.O., GAJAPATI, ODISHA, PIN – 759024.`** - **`3 ASHISH NAYAK @ SHILU SAGAR NAYAK AGED 35 YEARS S/O PRATAP NAYAK, DHARINBADI, DHARINBADI P.O., KANDHAMAL, ODISHA, PIN – 759024.`** ``` BY ADV N.A.SHAFEEK ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3377 of 2024 ## -:2:- Dated this the 23[rd] day of April,2024 ## O R D E R The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.521/2024 of the Central Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 20(b) (ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioners were arrested on 28.02.2024. 2. The essence of the prosecution case is that; on 28.02.2024 at around 2.40 hours, the accused were found in possession of 11.632 kg of ganja in a lodge at Ernakulam. The accused had purchased the contraband article from Odisha by paying Rs.1,000/- per kg. The accused were arrested with the contraband article from the spot. Thus, the accused have committed the above offences. B.A.No.3377 of 2024 -:3:- 3. Heard; Sri. N.A.Shafeek, the learned counsel appearing for the petitioners and the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. There is no material to substantiate the petitioners involvement in the case. In any given case, the petitioners have been in judicial custody for the last nearly sixty days, the investigation in the case is practically complete, the petitioners are persons without any criminal antecedents, the contraband involved in the case is of an intermediate quantity and recovery has been effected. Therefore, the petitioners further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioners are released on bail there is likelihood of them every B.A.No.3377 of 2024 ## -:4:- committing similar offences. Moreover, since the petitioners are natives of Odisha and have no roots in the State of Kerala, there is every likelihood of them fleeing from justice and also committing similar offences. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioners is that, they were found in possession of 11.632 kg of ganga, which is of an intermediate quantity. There is no material to show that the petitioners have any criminal antecedents. The fact remains that the petitioners have been in judicial custody since 28.02.2024, the investigation in the case is complete and recovery has been effected. It is well settled in Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because a person does not have roots in a State, he may not be denied bail. 7. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on taking note of B.A.No.3377 of 2024 ## -:5:- the fact that the contraband involved in the case is of an intermediate quantity, the petitioners do not have any criminal antecedents, the investigation in the case is practically complete, and recovery has been effected, I am of the view that the petitioners’ further detention is unnecessary. Hence, I hold that the petitioners are entitled to be released on bail . In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees One lakh only) each 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 petitioners shall appear before the Investigating Officer on every Tuesday and Saturday between 9 a.m. and 11 a.m till the final report is filed. They shall also appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.521/2024; B.A.No.3377 of 2024 -:6:- (ii) The petitioners 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 petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond; (v) The petitioners shall not leave the territorial jurisdiction of the Court of Session, Ernakulam, without the previous permission of the jurisdictional court; (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of B.A.No.3377 of 2024 ## -:7:- bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. (viii) 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 petitioners even while the petitioners are 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 mpm B.A.No.3377 of 2024 -:8:- ## **`APPENDIX OF BAIL APPL. 3377/2024`** ## **`PETITIONERS’ ANNEXURES`** ``` Annexure A ``` ``` THE TRUE COPY OF THE ORDER IN CRL. M.C. NO. 1061/2024 DATED 08.04.2024 BEFORE THE SESSIONS COURT, ERNAKULAM. ```