Sujin G.S. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 4[TH] DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945 BAIL APPL. NO. 5508 OF 2023** **AGAINST THE ORDER/JUDGMENT SC 677/2022 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, THIRUVANANTHAPURAM** ## **PETITIONER:** SUJIN G.S., AGED 26 YEARS, S/O GANGADHARAN, R/AT VATTAVILA PUTHENVEEDU, KOTTUKALKONAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695509 BY ADVS. S.JIJI M.M.BABY ## **RESPONDENTS:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) SRI. C.K. SURESH, SR. PUBLIC PROSECUTOR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A. No.5508/2023 -2- ## **O R D E R** The petitioner is the 12[th] accused in Crime No.5/2021 of Kattakada Excise Range office which is now pending as SC No.677/2022 on the file of the Additional Sessions Court-II, Thiruvananthapuram alleging commission of offences under Sections 8 (c), 20 (b) (ii) (C) and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985. ('the NDPS Act) 2. The prosecution allegation is that on 30-09-2021 a quantity of about 187 Kgs of Ganja was recovered from the house of the 1[st] accused and a further quantity of 59.400 Kgs of Ganja was seized on the basis of the information given by the 3[rd] accused. The prosecution allegation is that accused Nos.1, 5 and 8 proceed to Andhra Pradesh and procured the sizable quantity of Ganja involved in this case from accused No.10 who sent the consignment after camouflaging the same as kitchen equipments (accompanied by a fictitious GST bill) by parcel service to Thiruvananthapuram. Accused Nos.2, 3, 4 and 6 allegedly collected the parcel from the office of VRL Parcel service. Accused Nos.7, 11 and 12 are stated to be the financiers who financed the procurement of Ganja from accused No.10 and accused No.9 is stated to be the master mind behind the entire operation. 3. The learned counsel appearing for the petitioner would submit that the petitioner has been in custody from 17-03-2022. It is submitted that there are no criminal antecedents reported against the petitioner. It is submitted that this court in _**Fasil v. State of Kerala;** 2023 (3) KHC 212_ B.A. No.5508/2023 -3- had after analysing the law laid down by the apex court in various judgments held that notwithstanding the provisions contained in Section 37 of the NDPS Act an accused in a case involving commercial quantity of a narcotic drug could be granted bail if 3 conditions are satisfied. It is submitted that these 3 conditions are set out in paragraph 10 of the judgment in _**Fasil (supra)**_ are; - _“(1) the accused should not have any criminal antecedents._ - _(2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case)._ _(3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months).”_ It is submitted that all these conditions are satisfied in the present case. It is submitted where the investigation has been completed and final report has already been filed in the matter. It is submitted that there is no possibility of the trial being completed in the near future and since the petitioner has no criminal antecedents and since he has been in custody from 17-03-2022, this is a fit case that the petitioner can be directed to be released on bail. 4. The learned Senior Public Prosecutor vehementally opposes the grant of bail. The case diary of Crime No.5/2021 of Kattakada Excise Range office along with a copy of the final report filed has been placed for my perusal. The learned Senior Public Prosecutor refers to the final report to contend that the investigating agency has collected sufficient materials against the petitioner / 12[th] accused to show that he had involved in B.A. No.5508/2023 -4- purchasing huge quantity of Ganja from State of Andhra Pradesh and had also involved himself in the transport of the said Ganja from Andhra Pradesh through parcel service. It is submitted that the law laid down by this court in _**Fasil (supra)**_ does not appear to lay down the correct law as the decision appears to run contrary to the judgment of three Judges' bench of the Supreme Court in _**Narcotics Control Bureau v. Mohit Aggarwal;** 2022 KHC 6720_ where in paragraph 14 and 15 the Supreme Court held as follows; _14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dovetailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail._ _15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.”_ ## It is also submitted that the judgment of the Supreme Court in _**Achint**_ _**Navinbhai Patel Alias Mahesh Shah v. State of Gujarat and**_ B.A. No.5508/2023 -5- _**others;** (2002) 10 SCC 529_ is authority for the proposition that mere possibility of delay in concluding the trial is no ground to grant bail. It is also submitted that the State has already challenged the judgment of this court in _**Fasil (supra)**_ before the Supreme Court. 5. The learned counsel appearing for the petitioner in reply would submit with reference to the judgment of the Supreme Court in _**Rabi Prakash v. the State of Odisha and others**_ (order dated 13-07-2023 in SLP (Crl) No.4169/2023) wherein it was held that when there is a prolonged incarceration without trial the same may militate against the Fundamental Rights guaranteed under Article 21 of the Constitution of India and in such a situation, Right to Liberty must override the statutory embargo created under Section 37 of the NDPS Act. 6. Having heard the learned counsel for the petitioner and the learned Senior Public Prosecutor, I am of the view that the petitioner is not entitled to bail. A perusal of the final report suggests that the investigating agency has alleged that the petitioner was directly involved in financing the purchase of Ganja from Andhra Pradesh with the help of the 10[th] accused. Two telephone numbers of the petitioner have been referred to in the final report and certain frequent contacts with the other accused in the case have been cited to establish that the petitioner was part of a conspiracy to purchase huge quantity of Ganja from the state of Andhra Pradesh and to bring it to the state of Kerala and to distribute it in the state of Kerala. These statements in B.A. No.5508/2023 -6- the final report are not evidence and have not been yet proved against petitioner. However, considering the twin conditions imposed by Section 37 of the NDPS Act, it is necessary for this Court to look at those materials to decide as to whether the twin conditions in Section 37 of the NDPS Act are satisfied in order to direct that an accused in a case involving commercial quantities of a narcotic drug is to be directed to be released on bail. It is no doubt true that the Supreme Court in its order dated 13-07-2023 in _**Rabi Prakash (supra)**_ has taken the view that where the provisions of Section 37 of the NDPS Act are pitted against the right to liberty guaranteed under Article 21 of the Indian Constitution of India and where there has been a long period of incarceration, the Court must lean in favour of granting bail notwithstanding the statutory embargo under Section 37 of the NDPS Act. However, it must be noted that in the facts of the case before the Supreme Court, the accused had been in custody for more than 3 ½ years, which is not the case here. The petitioner has been arrested only on 17-03-2022. Therefore, I am of the view that the view taken by the Supreme Court in _**Rabi Prakash (supra)**_ is also not applicable in the facts and circumstances of this case. Again the judgment of the Supreme Court in _**Mohit Aggarwal (supra)**_ would clearly indicate that there must be credible and plausible grounds for the court to believe that the accused is not guilty of the alleged offence, for taking a view that the condition in Clause (b) of sub-section (1) of Section 37 of the NDPS Act is satisfied. B.A. No.5508/2023 -7- In the facts and circumstances of this case, I have no reasonable grounds to believe that the allegations raised against the petitioner are without any basis. Therefore, this bail application is dismissed, making it clear that the observations contained in this order are only for the purposes of considering the entitlement of the petitioner to bail and shall not prejudice the petitioner in the trial of the case. Sd/- **GOPINATH P. JUDGE** AMG B.A. No.5508/2023 -8- ## **APPENDIX OF BAIL APPL. 5508/2023** PETITIONER ANNEXURES - Annexure A-1 TRUE COPY OF THE ORDER DATED 13-07-2022 IN BAIL APPL. NO. 3834/2022 OF THIS HON'BLE COURT - Annexure A-2 TRUE COPY OF THE ORDER DATED 14-11-2022 IN BAIL APPL. NO. 6488/2022 OF THIS HON'BLE COURT - Annexure A-3 TRUE COPY OF THE ORDER OF THE ADDL. SESSION'S JUDGE-II, THIRUVANANTHAPURAM, IN CRIMINAL M.P. NO. 299/2023 IN S.C. NO. 677/2022 DATED 15-02-2023