SIBIN v. STATE OF KERALA

B.A.No.10207/23 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA,_ _1945_ ## _BAIL APPL. NO. 10207 OF 2023_ _CRIME NO.5/2021 OF Kattakkada Excise Range Office,_ _Thiruvananthapuram_ _AGAINST THE ORDER/JUDGMENT Bail Appl. 5718/2023 OF HIGH COURT OF KERALA_ ## _PETITIONER/5TH ACCUSED:_ _SIBIN, AGED 26 YEARS. S/O.CHANDRAN, VINEETHA BHAVAN, THACHOTTUKUNNU, MEPPUKADA DESOM, MALAYINKEEZHU P.O, THIRUVANANTHAPURAM._ _BY ADV.M.J.SANTHOSH_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031._ _SRI.JACOB E.SIMON, PUBLIC PROSECUTOR_ _THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ B.A.No.10207/23 2 ## **ORDER** This is an application filed u/s 439 of the Code of Criminal Procedure seeking regular bail. 2. The petitioner is the 5[th] accused in Crime No.5 of 2021 of Kattakkada Excise Range, Thiruvananthapuram, which is now pending as S.C.No.677 of 2022 on the file of the Additional Sessions Court-II, Thiruvananthapuram. The offences alleged against the petitioner are under Sections 22(b)(ii)(c) and 29 of the NDPS Act. 3. The prosecution case is that, on 30.09.2021, when a search was conducted in the house of the 1[st] accused, 187 Kilograms of Ganja was seized. During the investigation, it was revealed that the contraband articles were brought from Andhra Pradesh and it was also revealed from CCTV footage that the same was unloaded by the accused Nos.3 to 6. Further investigation revealed that, the contraband article was procured by Accused Nos.1, 5 and 8, after going to Andhra Pradesh and forwarding the same through parcel service. As part of the investigation the B.A.No.10207/23 3 petitioner was arrested on 08.02.2021 and since then he has been under judicial detention. Even though the petitioner has approached this Court on an earlier occasion seeking regular bail, same was dismissed as per order dated 20.07.2023 in B.A.No.5718 of 2023. This is the 2[nd] application submitted by him. 4. Heard Sri.M.J.Santhosh, learned counsel for the petitioner and Sri.Jacob E.Simon, learned Public Prosecutor for the State. 5. The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations and he was falsely implicated in the said case. Besides the same, it is also pointed out that he has been under judicial custody for more than two years and the persons against whom similar allegations are raised were already granted bail by this Court. The learned counsel for the petitioner also made available the copies of the orders by which other accused were granted bail. It was also pointed out that the petitioner is not having any criminal antecedents. 6. The learned Public Prosecutor opposes the said B.A.No.10207/23 4 application by pointing out that this is a case in which huge quantity of contraband article is involved and there are specific allegations and materials against the petitioner. He played specific role in procuring and transporting the contraband article from Andhra Pradesh to Kerala. It was also pointed out that on the last occasion this Court took note of the fact that a report has been made available by the learned Sessions Court, where the matter is pending consideration, to the effect that the trial can be completed within a period of ten months. It was pointed out that the trial is now in progress and therefore, there is no necessity to release the petitioner on bail, particularly taking note of the fact that the quantity involved is commercial and the rigour under Section 37 of the NDPS act will come into force. 7. I have carefully gone through the records. It is true that this Court dismissed the bail application submitted by the petitioner at an earlier occasion, taking note of the report placed on record by the learned Sessions Judge to the effect that the trial will be completed within a period of ten months. However, it is B.A.No.10207/23 5 discernible from the records that some of the accused persons against whom similar allegations are raised were already granted bail by this Court as per bail application Nos.8420 of 2023, 7702 of 2023, 9415 of 2023 and 9934 of 2023. It is also a fact that the petitioner is not a person having any criminal antecedents. Now more than two years have elapsed since the date of his arrest. The learned counsel for the petitioner made available the case status report of the Sessions Court which would indicate that the trial is not started yet. Thus, the trial is likely to take some time as well. In **Fasil v. State of Kerala [2023 (3) KHC 212]** , this Court after referring to various decisions rendered by the Honourable Supreme Court held that, in a case where the petitioner is under incarceration for a considerably longer period and there are no chances of completing the trial within a reasonable time, the rigour under Section 37 of the NDPS Act would get diluted. In such circumstances, when taking into account all the aforesaid aspects, including the long period of incarceration the petitioner had already undergone and also taking note of the fact that the B.A.No.10207/23 6 petitioner is a person aged just 23 years, with no criminal antecedents, I deem it appropriate to grant bail to the petitioner subject to conditions. 8. In the result, the application is allowed on the following conditions:- (i) The petitioner shall be released on bail on 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 jurisdictional Court. (ii) The petitioner shall appear before the investigating officer as and when required. (iii) The petitioner shall not commit any offence of similar nature while on bail. (iv) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. (v) The petitioner shall not leave India without the permission of the trial Court. (vi) The petitioner shall surrender his passport before the jurisdictional court and if the petitioner is not having a valid passport, he shall file an affidavit to that effect. B.A.No.10207/23 7 In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/22.11.23 B.A.No.10207/23 8 ## _APPENDIX OF BAIL APPL. 10207/2023_ _PETITIONER ANNEXURES_ _Annexure A1 THE TRUE COPY OF ORDER IN BAIL APPLICATION NO. 5718/23 DATED 20-07-2023_