Kerala High Court
Ajinas vs State Of Kerala on 7 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
BAIL APPL. NO. 6217 OF 2023
PETITIONER/2ND ACCUSED :
AJINAS
AGED 27 YEARS
S/O BASHEER, MATTUMAL HOUSE,
URANGATTIRI P.O., ERANAD TALUK,
MALAPPURAM
BY ADVS.
ANEESH K.R
SAURAV B.
RESPONDENT/COMPLAINANT :
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD
REPRESENTED BY CIRCLE INSPECTOR,
EXCISE CIRCLE, THIRUVANANTHAPURAM, PIN - 695004
BY SMT.PREETHA K K,SR.GOVERNMENT PLEADER
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA No.6217 of 2023
2
JUDGMENT
The petitioner is the 2nd accused in NDPS Crime No.6
of 2021 of Excise Enforcement and Anti Narcotic Enforcement
Squad, Thiruvananthapuram alleging commission of offences
punishable under Sections 20(b)(ii)(c) and 29 of Narcotic Drugs
and Psychotropic Substances Act, 1985. The allegation against
the petitioner is that he along with the 1 st accused in this case
were found in possession of 252 kg of dry ganja in a vehicle
bearing registration No.KL 38 H 6292.
2. The learned counsel for the petitioner would
submit that the petitioner has been in custody from 08.05.2021.
He submits that this Court has already granted bail to the 1 st
accused through order in B.A.No.5370 of 2023. It is submitted
that the petitioner has been in custody from 08.05.2021
onwards and has, therefore, been in custody for more than 2 ½
years. It is submitted that though the final report has been filed
in the matter, no charges have been framed against the
petitioner and that the case is pending as S.C.No.1605 of 2021
on the file of the 4th Additional District Court,
Thiruvananthapuram. It is submitted that this Court in
BA No.6217 of 2023
Haneefa v. State of Kerala considered an almost identical
situation and several judgment of the Apex Court and held as
follows:
"11. Epitomizing the parameters laid down by
the Apex Court in the decisions herein above
discussed, the following parameters clubbed together
can be considered to dilute the rigour under Section 37
of the NDPS Act:
(1) the accused should not have any
criminal antecedents.
(2) the accused has been in custody for a
pretty long time, at least more than one year, (say for
eg. fourteen and half months in the instant case).
(3) the impossibility of trial within a
reasonable time, at least more than one year (for this
purpose, the Court granting bail should ensure that
trial could not be completed at least within a period of
six months).
Yet another aspect to be added in the list, in my view, is
the quantity of the contraband. That is to say, when the
quantity of contraband is something above the
intermediate quantity and the same is not a huge or
sizable quantity, the same also can be considered after
satisfying the above 3 parameters stated herein above,
for diluting the rigour under Section 37 of the NDPS
Act."
3. The learned Public Prosecutor refers to the facts
and circumstances of the case and vehemently opposes the
BA No.6217 of 2023
grant of bail. It is submitted that there is no change of
circumstances warranting this Court take a different view from
the view taken while considering the bail application of the
petitioner earlier.
4. Having heard the learned counsel for the
petitioner and the learned Public Prosecutor, I am of the view
that the petitioner can be released on bail. The Supreme Court
of India in Rabi Prakash v. The State of Odisha, [2023 Live
Law (SC) 5033] has considered the provisions of Section 37 of
the NDPS Act and held that when long period of incarceration
coupled with the fact that the accused has no criminal
antecedents are taken into consideration together, the Court
must lean in favour of granting bail taking cue from the
provisions of Article 21 of the Constitution of India. Moreover,
the 1st accused has already been released on bail. The
petitioner has been in custody for 2 ½ years. The allegations
against the petitioner are not more serious than the allegations
against the 1st accused.
The petitioner is, therefore, directed to be released on
bail on the following conditions;
BA No.6217 of 2023
(i) Petitioner shall execute a bond for a sum of
Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties
each for the likesum to the satisfaction of the jurisdictional
court;
(ii) He shall appear before the trial court on all
posting dates without fail, except specifically exempted by the
trial court.
(iii) He shall not leave the State of Kerala without
obtaining prior permission from the jurisdictional court.
(iv) He shall surrender his passport before the
jurisdictional court. If the petitioner does not have a passport,
he shall execute an affidavit to that effect and file the same
before the said court within seven days of release on bail.
(v) He shall not attempt to interfere with the
investigation or to influence any witness in Crime No.6 of 2021
of Excise Enforcement and Anti-Narcotic Special Squad,
Thiruvananthapuram.
(vi) He shall not involve in any other crime while on
bail.
In any of the aforesaid conditions are violated, the
Investigating Officer in Crime No.6 of 2021 of Excise
BA No.6217 of 2023
Enforcement and Anti-Narcotic Special Squad,
Thiruvananthapuram may file an application before the
jurisdictional court, for cancellation of bail.
Sd/-
GOPINATH P., JUDGE
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BA No.6217 of 2023
APPENDIX OF BAIL APPL. 6217/2023
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE COMMON ORDER IN CMP
NO 1811/2021 AND CRL MC 3127/2021 DATED
22/12/2021
Annexure A2 THE TRUE COPY OF THE ORDER IN BA NO 10053
OF 2022
Annexure A3 THE BIRTH CERTIFICATE OF THE MINOR CHILD
Annexure A4 THE TRUE COPY OF THE ORDER IN BAIL
APPLICATION 7779/2022
Annexure A5 THE TRUE COPY OF THE COMMON ORDER DATED
19.07.2023 BY THE ADDITIONAL DISTRICT AND
SESSIONS COURT-IV, THIRUVANANTHAPIURAM
Annexure A6 THE TRUE COPY OF THE JUDGMENT IN BAIL
APPLICATION 5370/2023
