Visyajith, Midhun Mandol & Amritha Mandal v. State of Kerala and Circle Inspector of Police, Muvattupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945** **BAIL APPL. NO. 303 OF 2024** **CRIME NO.2223/2023 OF Muvattupuzha Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CRMC 3580/2023 OF DISTRICT COURT &** ## **SESSIONS COURT, ERNAKULAM** ## **PETITIONER/S:** 1 VISYAJITH, AGED 30 YEARS S/O GOVOOR MANDOL,JUNSHEDPOOR, SUNDARPOOR, NADIA, WEST BENGAL, PIN - 741126 2 MIDHUN MANDOL, AGED 29 YEARS S/O SUDHANSU MANDOL, BHAMINABAD, MURSHIDABAD, WEST BENGAL., PIN - 742149 3 AMRITHA MANDAL, AGED 21 YEARS S/O GANESH MANDAL, POLLAGIRI, DHINNAMPOOR, MURSHIDABAD, BHAMINABAD, MURSHIDABAD, WEST BENGAL, PIN - 742149 BY ADV N.B.FATHIMA SULFATH ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 CIRCLE INSPECTOR OF POLICE, MUVATTUPUZHA POLICE STATION, ERNAKULAM DISTRICT, PIN - 686661 ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 303 OF 2024 2 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.2223/2023 of the Muvattupuzha Police Station, Ernakulam, registered against them 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 was arrested on 30.11.2023 and remanded to judicial custody on the same day. 2. The essence of the prosecution case is that: around 7.30 p.m. on 30.11.2023, the accused were found in conscious possession of 3.340 kilograms of ganja on the public pathway at Kunnaykkal Kara near Peruvammozhi, Valakam Village, Muvattupuzha. The accused were arrested from the spot. Thus, the accused have committed the above offences. 3. Heard; Sri.Fathima Sulfath N.B., the learned counsel appearing for the petitioners and Smt.Seetha S., BAIL APPL. NO. 303 OF 2024 3 the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners have been falsely implicated in the crime. The petitioners have been in judicial custody since 30.11.2023. The final report has not been laid. The petitioners have no criminal antecedents. The investigation in the case is practically complete. The contraband is of intermediate quantity. Therefore, the petitioners are entitled to be released on statutory bail in view of the proviso to Sub Section (2) of Section 167 of the Code of Criminal Procedure ('Code', for short). Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. Nonetheless, she conceded that the contraband is of intermediate quantity, that the petitioners have been in judicial custody since 30.11.2023, that the final report has not been laid, and that the petitioners have no criminal antecedents. 6. Indisputably, the petitioners were arrested on BAIL APPL. NO. 303 OF 2024 4 30.11.2023, the contraband that was seized from the petitioners is of intermediate quantity, and the final report has not been laid. Thus, the petitioners are entitled to compulsive bail as contemplated in the proviso to Sub Section (2) of Section 167 of the Code. 7. 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 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. BAIL APPL. NO. 303 OF 2024 5 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] ………………..” 8. 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. 9. 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 petitioners are entitled to be released on statutory bail as contemplated under Section 167(2) of the Code. 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 jurisdictional Court, which shall be subject to the following conditions: BAIL APPL. NO. 303 OF 2024 6 (i) The petitioners shall appear before the Investigating Officer as and when required; (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 them from disclosing such facts to the jurisdictional Court or tamper with the evidence in any manner, whatsoever; (iii) The petitioners shall not commit any offence while he is on bail; (iv) The petitioners shall surrender their passports, if any, before the jurisdictional Court 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) 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 BAIL APPL. NO. 303 OF 2024 7 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** rkc/02.02.24 BAIL APPL. NO. 303 OF 2024 8 ## **APPENDIX OF BAIL APPL. 303/2024** PETITIONER ANNEXURES Annexure A1 THE COPY OF THE ORDER IN CRL. MC. NO. 3580/2023 DATED ON 16/12/2023