Kerala High Court

Saharath V.P vs State Of Kerala on 22 April, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE ASHOK MENON

   THURSDAY, THE 22ND DAY OF APRIL 2021 / 2ND VAISAKHA, 1943

                      Bail Appl..No.1463 OF 2021

  CRIME NO.521/2019 OF Panniankara Police Station , Kozhikode


PETITIONER/S:

                SAHARATH V.P
                AGED 43 YEARS
                S/O. MUHAMMED KOYA
                VALIYAKAM PARAMB HOUSE,
                KALLAYI (PO), KOZHIKODE DISTRICT
                673003

                BY ADV. SRI.P.V.ANOOP

RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
                KERALA
                682031


OTHER PRESENT:

                SR.PP- SRI.SANTHOSH PETER

     THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD             ON
3.3.2021, THE COURT ON 22.04.2021 PASSED THE FOLLOWING:
 BA No.1463 of 2021

                                2




                         O R D E R

Dated this the 22nd day of April 2021

Successive application for regular bail under Section 439

Cr.P.C.

2. The applicant is the accused in Crime No.521/2019

of Panniyankara Police station, Kozhikkode for having allegedly

committed an offence punishable under Section 22 (c) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS

Act for short). The investigation is over and the final report has

already been filed and taken on file of the Court of the Special

Judge for NDPS case, Vadakara as S.C. 41/2020.

3. The prosecution case, in brief, is that on 07/12/2019

at about 11:40 AM, the Police officers apprehended the BA No.1463 of 2021

accused near the goods shed yard of the Kallai Railway Station

under suspicious circumstances, and on search he was found

to be in possession of 2830 capsules weighing 1750 grams of

Spasmo Proxyvon containing Tramadol, a commercial quantity

of a psychotropic substance, violating the provisions of the

NDPS Act. He was remanded consequent to his arrest and

continues in judicial custody. The applicant had filed an

application for statutory bail under Section 167 (2) Cr.P.C read

with Section 36A(4) of the NDPS Act as Crl. M.P No.275/2020

before the Designated Court and the same was dismissed vide

Annexure-2 Order. The final report in an NDPS case has to be

filed within the statutory period of 180 days. There is no

dispute that the final report in the instant case was filed on BA No.1463 of 2021

16/03/2020 as evident from Annexure-1. The applicant would

contend that the final report which was filed on time by the

investigating officer, was returned for the reason that the copy

of the drug disposal committee was not attached.

subsequently, it was filed only after the expiry of the statutory

period and hence the applicant ought to have been given the

benefit of mandatory bail under Section 167 (2) Cr.P.C., read

with Section 36A(4) of the NDPS Act. The applicant states that

the Apex Court has in [email protected] Ramswaroop & Ano v. State of

Rajasthan, [AIR 2018 Sc 4647:2018 KHC 6714] held that when

a charge filed before the court within the statutory time under

Section 167(2) CrP.C is returned due to technical defects, it

cannot be said charge sheet is filed, and that the accused is BA No.1463 of 2021

entitled for statutory bail after expiry of ninety days if no

charge sheet is filed within that period. The applicant also

relies on the decisions in Udhay Mohanlal Acharya v. State of

Maharashtra [2001 (5) SCC 453] and M. Raveendran v. The

Intelligence Officer, Directorate of Revenue Intelligence

[Crl.Appeal No. 699 of 2020] to submit that the accused may

be released on bail.

4. Heard Shri P.V. Anoop, the learned counsel appearing

for the applicant and Shri Santhosh Peter, the learned Senior

Public Prosecutor. Records perused.

5. The applicant had raised all these contentions earlier

and this court had vide Order dated 21-10-2020 found that

there were no reasons to hold that the final report was not BA No.1463 of 2021

filed within time. The copy of the Drug Disposal Committee

was not seen handed over to the accused. Hence, the

prosecution was directed by the jurisdictional court to cure

that defect. This Court had relied upon the decision of the

Supreme Court in Central Bureau of Investigation v. R. S. Pai

and Another, [2002 (2) KLT 149 (SC) : 2002 (5) SCC 82] ,and

the decision of this Court in Shino Paul and Others v. State of

Kerala [2010 (1) KLT 339], wherein it was held that if a mistake

is committed in not producing the relevant documents at the

time of submitting the report or the charge - sheet, it is always

open to the investigating officer to produce the same with the

permission of the Court. In the case on hand, the charge -

sheet was returned as defective. It implies permission to cure BA No.1463 of 2021

the defects. The defects were cured and the charge-sheet was

re-presented. It cannot be said that the proviso to Section

167(2) Cr.PC would get attracted, and the accused to get

default bail if the charge - sheet is re-presented, after curing

the defects, beyond the period in the said proviso, when the

charge-sheet was originally filed within time. Regarding the

application of the embargo under Section 37 of the NDPS Act,

this Court had referred to the judgment of the Hon'ble

Supreme Court reported in Union of India (UOI) v. Shri Shiv

Shanker Kesari [KHC 5675: 2007 (7) SCC 798] and the

application for bail was dismissed.

6. An accused has right to make successive applications

for grant of bail. But, the Court entertaining such subsequent BA No.1463 of 2021

bail applications has a duty to consider the reasons and

grounds on which the earlier bail applications were rejected. In

such cases, the Court also has a duty to record what are the

fresh grounds which persuade it to take a view different from

the one taken in the earlier applications (See Kalyan Chandra

Sarkar v. Rajesh Ranjan, [2004 KHC 754 : AIR 2004 SC 1866 ].

7. In Kalyan Chandra Sarkar v. Pappu Yadav, [2005 KHC

604 : AIR 2005 SC 921], the Supreme Court has held thus:

"Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a BA No.1463 of 2021

subsequent application."

8. In Achpal's case (Supra), the question that arose was

different. There, the investigation was completed and Challan

under S.173 was filed on 05/07/2018. However, just two days

before that, an order had been passed by the High Court

recording submission of the public prosecutor that

investigation in the matter would be conducted by a Gazetted

Police Officer. The investigation which led to the filing of the

report on 05/07/2018, was not in conformity with the

statement made before the High Court. It was for this reason

that the papers were returned by the Magistrate. In the case in

hand, the Charge-sheet was returned for the purpose of

supplying a copy of the report of the Drug Disposal BA No.1463 of 2021