Saleem v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 BAIL APPL.NO.3430 OF 2024 ``` ``` CRIME NO.302/2024 OF Tirur Police Station, Malappuram ``` ``` ------------ ``` ## **`PETITIONER/2ND ACCUSED :-`** ``` SALEEM, AGED 34 YEARS S/O.IBRAHIMKUTTY, RESIDING AT ENIKAKANTEPURAKKAL HOUSE, VAKKAD P.O., MALAPPURAM DISTRICT, PIN - 676 502 ``` ``` BY ADV NIRMAL V NAIR ``` ## **`RESPONDENT/STATE :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SRI.C.S.HRITHWIK, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.3430 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R Dated this the 4 th day of June, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2[nd] accused in Crime No.302/2024 of the Tirur Police Station, Malappuram, registered against the accused, for allegedly committing the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 _(in short, ‘NDPS Act’)_ . The petitioner's arrest was recorded on 26.02.2024. 2. The crux of the prosecution case is that; on 27.02.2024, the detecting officer and party conducted a search of the accused premises and seized 1.4 kgs of ganja and 40 gms of Hashish. Thus, the accused has committed the above offence. 3. Heard; Sri.Nirmal V. Nair, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor appearing for the respondent. ``` BAIL APPL.NO.3430 OF 2024 ``` ``` -: 3 :- ``` 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. The petitioner's arrest was recorded on 26.02.2024, the contraband involved in this case is of an intermediate quantity, the investigation of the case is not complete and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail as contemplated under Section 167(2) of the Code of Criminal Procedure. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the petitioner is a person with criminal antecedents. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. Nonetheless, it was not disputed that the petitioner has been in judicial custody for the last 60 days and the final report has not been laid. However, he submitted that an application has been filed under Section 36A(4) of the ``` BAIL APPL.NO.3430 OF 2024 ``` ``` -: 4 :- ``` NDPS Act to enlarge the time period to complete the investigation. 6. The prosecution allegation against the petitioner is that; on search in the premises of the accused, 1.4 kgs of ganja and 40 gms of Hashish were seized. Indisputably, the contraband involved in this case is of an intermediate quantity as per the specification under the NDPS Act. The petitioner's arrest was recorded on 26.02.2024, which is more than 60 days. 7. The contention of the learned Public Prosecutor that an application has been filed under Section 36A(4) of the NDPS Act is untenable for the reason that it is only when the offence registered against the petitioner falls within the purview of Sections 19, 24 or 27 or when the offence involving is of a commercial quantity, that a larger period is granted to the Investigating Officer to complete the investigation within 180 days. If the same cannot be completed within the stipulated time period, the ``` BAIL APPL.NO.3430 OF 2024 ``` ``` -: 5 :- ``` Investigating Officer is given a right to file an application seeking for extension upto a period of one year. 8. In the case on hand, indisputably, the petitioner has been alleged to have committed an offence only under Section 20(b)(ii)(B) of the NDPS Act. Therefore, the provision under Section 36A(4) is not applicable to the facts of the case. It was the bounden duty of the Investigating Officer to have filed the final report within the stipulated period of 60 days since the maximum period of punishment that can be imposed on the petitioner is upto ten years. Thus, the petitioner is entitled to compulsive bail as contemplated under the proviso to subsection (2) of Section 167. 9. 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 ``` BAIL APPL.NO.3430 OF 2024 ``` ## `-: 6 :-` trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society. This is also another limb of 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] ………………..” 10. 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. 11. 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. ``` BAIL APPL.NO.3430 OF 2024 ``` ``` -: 7 :- ``` 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 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 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 them 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 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; ``` BAIL APPL.NO.3430 OF 2024 ``` ``` -: 8 :- ``` - (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 moved and entertained by the court below. **Sd/C.S. DIAS, JUDGE** Jvt/4.6.2024 ``` BAIL APPL.NO.3430 OF 2024 ``` ``` -: 9 :- ``` ## **`APPENDIX OF BAIL APPL. 3430/2024`** ``` PETITIONER ANNEXURES Annexure A1 ``` ``` A TRUE COPY OF THE FIR DATED 27-2-2024 IN CRIME NO. 302/2024 OF THE TIRUR POLICE STATION ```