Kerala High Court
Akhil vs State Of Kerala on 21 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 21ST DAY OF AUGUST 2023 / 30TH SRAVANA, 1945
BAIL APPL. NO. 4062 OF 2023
CRIME NO.686/2022 OF Sasthamcotta Police Station, Kollam
AGAINST THE ORDER/JUDGMENT SC 2001/2022 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - V, KOLLAM / IV ADDL.M.A.C.T.
CMP 657/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V,
KOLLAM / IV ADDL.M.A.C.T.
PETITIONER/ACCUSED NO.1:
ASWIN
AGED 29 YEARS
S/O. ASHOKAN, ASHOKA MANDIRAM, PARAYAM, MULAVANA,
KOLLAM, PIN - 691503
BY ADVS.
SASTHAMANGALAM S. AJITHKUMAR
SATHEESH MOHANAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
BY SR.PP., SRI. C.K. SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.08.2023, ALONG WITH Bail Appl..4037/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Bail Appln. Nos. 4062 & 4037 of 2023
:2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 21ST DAY OF AUGUST 2023 / 30TH SRAVANA, 1945
BAIL APPL. NO. 4037 OF 2023
CRIME NO.686/2022 OF Sasthamcotta Police Station, Kollam
AGAINST THE ORDER/JUDGMENT Bail Appl. 213/2023 OF HIGH COURT
OF KERALA
PETITIONER/ACCUSED NO.2:
AKHIL
AGED 28 YEARS
S/O. AJAYA KUMAR, AJAYA NIVAS, KOTTATHALA, MYLOM,
KOLLAM., PIN - 691507
BY ADVS.
C.P.UDAYABHANU
NAVANEETH.N.NATH
ABHISHEK M. KUNNATHU
RASSAL JANARDHANAN A.
P.R.AJAY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 SUB INSPECTOR OF POLICE
SASTHAMCOTTA POLICE STATION, KOLLAM RURAL, PIN -
691521
BY SR.PP., SRI. C.K. SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.08.2023, ALONG WITH Bail Appl..4062/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Bail Appln. Nos. 4062 & 4037 of 2023
:3:
VIJU ABRAHAM , J.
===========================
Bail Appln. Nos. 4062 & 4037 of 2023
============================
Dated this the 21st day of August, 2023
ORDER
These are applications for regular bail.
2. BA.No. 4037/2023 is filed by accused No. 2, whereas
BA.No. 4062/2023 is filed by the accused No.1 in Crime No.
686/2022 of Sasthamcotta Police Station, Kollam District registered
alleging commission of offences punishable under Sections 20(b)(ii)
(c) of the Narcotic Drugs and Psychotropic Substances Act (for
short, "NDPS Act").
3. The prosecution allegation is that, on 08.05.2022 at
around 10.55 p.m. at Bharanikkavu Junction, when the Sub
Inspector of Police, Sasthancotta Police Station and his party
intercepted and inspected an Innova car bearing No. KL 03/AB-5511
in which accused was travelling, they were found in possession of
46.78 kilograms of ganja which they have transported from Andhra
Pradesh to Kerala.
4. Petitioners submit that they have been falsely implicated
in the above said crime and that they are in custody from
09.05.2022 onwards. Petitioners further submit that the
investigation is over and final report has been laid in the above said
Bail Appln. Nos. 4062 & 4037 of 2023
crime and therefore their further detention is not required for the
purpose of the investigation.
5. Learned Public Prosecutor seriously opposed the
application for bail mainly contending that 46.78 kgs of ganja was
seized from the possession of the petitioners and since the alleged
contraband involved is of commercial quantity, the petitioners are
not entitled for bail in view of the rigor of Section 37 of the NDPS
Act.
6. When the matter was taken up for consideration, the
learned Counsel appearing for the respective petitioners in the bail
applications would submit that they are entitled for statutory bail.
They raised the said contentions on the basis of the fact that after
filing of the charge sheet the prosecution has requested permission
for further investigation and because of the same the trial of the
case could not take place. Petitioners submit that such an
incomplete charge sheet was filed only to see that petitioners are
not released statutory bail. Even though the prosecution has ample
power under Section 36A (4) of the NDPS Act to seek extension of
time beyond the period of 180 days to complete the investigation,
the investigating officer filed a final report before the court without
even completing the investigation.
7. The learned counsel for the petitioner would rely on the
recent order of the High Court of Delhi in CBI v. Kapil Wadhawan,
Bail Appln. Nos. 4062 & 4037 of 2023
Crl.M.C. No. 6544/2022 to contend that in a similar situation, the
accused was granted statutory bail. Petitioners also rely on the
order of the High Court of Punjab and Haryana in Chandraprakash
v. State of Haryana, C.R.R. No. 1326/2023, and order of the
High Court of Delhi in Riyazuddin v. State NCT of Delhi, BA No.
3195/2022 in support of their contentions.
8. Per contra, the learned Public Prosecutor opposed the
application for bail mainly contending that the charge sheet in
respect of the petitioners is already filed (Part-A) and numbered as
SC No. 2001/2022 and the investigation against the other accused
is still going on (Part-B). Since the accused gave wrong password of
the mobile phone seized, the same could not be examined by the
FSL. As the examination of the mobile phones which are seized in
connection with the crime was necessary as part of the
investigation of the Part-B case against the other accused, a
petition was filed by the prosecution to permit further investigation,
which was allowed by the court. Later a report dated 12.05.2023
was filed before the trial court intimating that the mobile phones
could not be verified as wrong passwords were given and requested
to start the trial as against the petitioners as charge sheet has
already been laid. The public prosecutor would further submit that
the charge sheet against the petitioners has already been laid and
the verification of the mobile phones was necessary in connection
Bail Appln. Nos. 4062 & 4037 of 2023
with the investigation which is going on in respect of the other
accused and therefore the contention of the petitioners that an
incomplete charge sheet has been filed is without any basis. In
support of his contention, the learned public prosecutor relies on
the judgment in CBI v. R.S. Pai and another, [2002 (5) SCC
82]; Narendra Kumar Amin v. CBI and others, [2015 (3) SCC
417]; Vipul Shital Prasad Agarwal v. State of Gujarat, [2012
(4) KLT SN 144]; Saharath V.P. v. State of Kerala, [2021 KHC
5061]; Shino Paul and Others v. State of Kerala and Others
[2010 (1) KHC 469]; Peethambaran v. State of Kerala, [2020
(1) KLT 722]; and Sameer v. State of Kerala, [2021 (5) KLT
357].
9. In Kapil Wadhawan's case supra, the charge sheet was
filed by the CBI. As per the charge sheet itself, it is mentioned that
further investigation with regard to ascertaining the role of certain
persons and entities who are mentioned in the FIR and other
connected issues were still continuing and the trial court on a
consideration of the said charge sheet found that the same is
incomplete and therefore granted statutory bail and the said order
was upheld by the Delhi High Court in the aforesaid judgment
holding that on the face of it, as reflected by the learned Senior
Counsel, a major part of the role is yet to be investigated. In
Chandraprakash's case supra, charge sheet was filed without the
Bail Appln. Nos. 4062 & 4037 of 2023
FSL report and therefore, held that the investigation is incomplete
and therefore granted statutory bail. After going through the said
judgments cited by the counsel for the petitioners, I am of the
opinion that those judgments are not applicable in the facts of the
present case. This is a case where the investigation against the
petitioners was complete and charge sheet was filed and further
investigation was necessitated in connection with crime
investigation in respect of other accused since the accused gave
false password of the mobile phones. In Kapil Wadhawan's case
supra, as per the charge sheet itself, further investigation with
regard to ascertaining the roles of certain persons and entities
mentioned in the FIR and other connected issues was continuing
and the court held that a major part of the fraud involved in the
said case is yet to be investigated which is not the situation in the
present case. As regard Chandraprakash's case supra, regarding
non submission of FSL report along with the charge sheet, this court
in Sameer's case supra, had occasion to consider an identical
question and held that submission of the final report without the
FSL report cannot be termed as an incomplete final report so as to
grant default bail under Section 167 (2) Cr. P.C. and I am in
agreement with the said proposition laid down in Sameer's case
supra. In R.S. Pai's case supra the Apex Court held that the
additional evidence gathered during the investigation can be
Bail Appln. Nos. 4062 & 4037 of 2023
produced by the police officer even after submission of the charge
sheet and in Narendra Kumar Amin's case supra the Apex Court
held that non-filing of full set of documents with charge sheet within
the statutory period does not entitle accused to default bail as long
as the charge sheet is in compliance with Section 173(2) Cr.P.C. A
similar view was taken by this court in Saharath V.P.'s case supra.
In Shino Paul's case cited supra it was held that when the charge
sheet was filed within time and was returned by the learned
magistrate with certain directions regarding the investigation and
the same was not resubmitted within 90 days from the date of
arrest is of no consequence and if the charge sheet is filed within
time, question of default bail does not arise. This Court in
Peethambaran's case supra again considered the question of
statutory bail and held that once charge sheet is filed within the
stipulated period the right of the accused stand extinguished and
such right does not get reviewed merely for the reason that the
Court has set aside or quashed the final report. The Apex Court in
Vipul Shital Prasad's case supra has held that mere undertaking
of a further investigation by investigating officer on his own or upon
the direction of Superior Police Officer or pursuant to a direction by
the concerned magistrate to whom the report is forwarded, does
not mean that the report submitted under Section 173 (2) Cr.P.C. is
abandoned or rejected. In view of the above, I am of the opinion
Bail Appln. Nos. 4062 & 4037 of 2023
that the petitioner is not entitled for statutory bail as final report
has been filed as regard the petitioners herein.
Therefore, the above bail applications are accordingly
dismissed. It is made clear that the dismissal of these bail
applications will not stand in the way of the petitioners in
approaching this court or the trial court concerned seeking regular
bail on any other grounds available to them.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
