Rishad v. State of Kerala

BAIL APPL. NO. 6221 OF 2024 1 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 BAIL APPL. NO. 6221 OF 2024 CRIME NO.514/2024 OF Thrikkakara Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.2040 OF 2024 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM PETITIONER/S: **RISHAD AGED 40 YEARS , S/O MUHAMMAD SHAREEF, RAZRISH VILLA, ELLATHU NAGAR, PALLURUTHY P.O ERNAKULAM ., PIN - 682006** ## **BY ADV PADMA LAKSHMI** RESPONDENT/S: **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** OTHER PRESENT: ## **SR PP SMT SEETHA S** THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.S.DIAS,J** **-------------------------------------------Bail Application No.6221 of 2024 --------------------------------------------Dated this the 6[th] day of August, 2024** ## **ORDER** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the 3[rd] accused in Crime No.514/2024 of the Thrikkakara Police Station, Ernakulam, which is registered against the accused for allegedly committing the offences punishable under Section 22(c) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested and remanded to judicial custody on 10.05.2024. 2. The prosecution case, in brief, is that: on 10.05.2024, at around 16:55 hours, seven accused persons including a lady were found in an apartment at Thrikkakara, Ernakulam and were found in possession of 48.59 grams of MDMA. The accused were arrested on the spot with the contraband article. Thus, the accused have committed the above offences. BAIL APPL. NO. 6221 OF 2024 3 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 3. Heard; Smt.Padma Lakshmi, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the above offences. The petitioner has reliably learnt that as per the chemical analysis report the contraband is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is of an intermediate quantitiy. Hence, the petitioner is entitled to be enlarged on statutory bail as contemplated under Section 36A of the Act read with Section 167(2) of the Code. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submits that the investigation is in progress. She also stated that the petitioner has committed a similar offence. If the petitioner is enlarged BAIL APPL. NO. 6221 OF 2024 4 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the contraband has turned out to be 'methamphetamine' and therefore is of an intermediate quantity. The investigation in the case is not complete and the final report has not been laid. 6. The prosecution was launched against the accused on the allegation that they were found in conscious possession of 48.59 grams of MDMA. Now, as per the chemical analysis report, the contraband has turned out to be 'methamphetamine'. Therefore, the contraband involved in the case is of an intermediate quantity. Indisputably, the petitioner was arrested on 10.05.2024, which is now nearly 90 days. The investigation in the case is not complete and the final report has not been laid. Therefore, in view of Section 167(2) of the Code r/w Section 36(A) of the Act, the petitioner is entitled to be released on statutory bail. BAIL APPL. NO. 6221 OF 2024 5 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 ## 7. It is apposite to extract Section 36A(4) of the ## Act, which reads as follows: “ (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days” Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.” ## 8. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- “167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not BAIL APPL. NO. 6221 OF 2024 6 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] ” BAIL APPL. NO. 6221 OF 2024 7 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 9. Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable Supreme Court in **Sanjay Dutt v.State through C.B.I., Bombay** [(1994) 5 SCC 410] has observed as follows:- "53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." ## 10. A three-Judge Bench of the Honourable ## Supreme Court in **Uday Mohanlal Acharya v. State of** BAIL APPL. NO. 6221 OF 2024 8 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 **Maharashtra** [(2001) 5 SCC 453], reiterated the legal proposition in **Sanjay Dutt v.State through C.B.I., Bombay** (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) 11. In the instant case, the petitioner has been in judicial custody for the last nearly 90 days and the Investigating Officer has not filed the final report. Hence, I am convinced that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Section 36A(4) of the Act and under Section 167(2) of the Code. Hence, I allow the bail application, but subject to stringent conditions: BAIL APPL. NO. 6221 OF 2024 9 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 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 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) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for BAIL APPL. NO. 6221 OF 2024 10 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (v) Application for deletion/modification of the bail conditions shall be filed and entertained before the court below. - (vi) 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/- ## **C.S.DIAS,JUDGE** ## rkc/06.08.24 ## **PETITIONER ANNEXURES** APPENDIX OF BAIL APPL. 6221/2024 **Annexure A1** **TRUE COPY OF FIR** BAIL APPL. NO. 6221 OF 2024 11 **==> picture [57 x 57] intentionally omitted <==** 2024:KER:59220 **Annexure A2 THE TRUE COPY OF THE BANK PAPERS Annexure a3 THE TRUE COPY OF FSL REPORT Annexure a4 THE TRUE COPY OF ORDER DATED 11/07/2024 Annexure a7 ORDER DATED 05-07-2024 IN BAIL APPL.4426/2024 ON HIGH COURT**