Anu. B.S vs State Of Kerala
2023 Latest Caselaw 7232 Ker

B.A.No.3834/23                         1



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
                       BAIL APPL. NO. 3834 OF 2023
  CRIME NO.24/2022 OF Palakkad Excise Range Office, Palakkad
   AGAINST THE ORDER/JUDGMENTSC 1041/2022 OF III ADDITIONAL
    DISTRICT COURT, PALAKKAD / II ADDITIONAL MACT, PALAKKAD
PETITIONER/ACCUSED NO.2:

             ANU.B.S,
             AGED 22 YEARS,
             S/O.BINU, ARUN BHAVAN, KATHIRADICHANPARA,
             KUDAPPANAMOODU. KOVILOORU, VELLARADA P.O.
             THIRUVANANTHAPURAM, PIN - 695 505.

             BY ADVS.
             VISHNUPRASAD NAIR
             JITHIN VARGHESE



RESPONDENT/STATE:

             STATE OF KERALA,
             REPRESENTED PUBLIC PROCECUTOR,
             HIGH COURT OF KERALA, KOCHIN, PIN - 682 031.

             BY SMT.NEEMA V., PUBLIC PROSECUTOR


      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.06.2023,      THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 B.A.No.3834/23                           2



                                 ORDER

This is an application for regular bail filed under Section 439

Cr.P.C.

2. The petitioner is the 2nd accused in Crime No.24 of 2022

of the Excise Range Office, Palakkad. The offences alleged against

the petitioner and other accused are under Sections 20(b) (ii) (c)

read with Section 29 of the NDPS Act.

3. The prosecution case is that on 06.05.2022 at 3.00 PM,

while the Excise officials attached to Palakkad Excise Range and

the Railway Protection Force were conducting a routine joint

search of the passengers alighting from the trains, and when they

reached near the over bridge in the platform, they came across

two persons carrying shoulder bags. As the Excise party felt

suspicious about the persons they were apprehended and

questioned about the contents of the bag. When the Excise

officials searched the bags, it was found that both bags contained

two packets each of ganja. When weighed, it was found that the

total quantity of the ganja was 20.5 Kg. The petitioners were

arrested along with the contraband article from the spot. The

crime registered in such circumstances. Since then, the petitioner

and the other accused have been under judicial custody.

Investigation in this case is over, and the final report has been

submitted. Now the matter is pending as SC.No.1041 of 2022 on

the file of the Addl.District and Sessions Court-III, Palakkad. This

application is submitted in such circumstances seeking regular

bail.

4. Heard Sri.Jithin Varghese, learned counsel for the

petitioner and Smt.Neema V., learned Senior Public Prosecutor for

the State.

5. The learned counsel for the petitioner submits that the

petitioner is innocent of all the allegations. According to him, the

quantity detected from the possession of the accused persons is

just above the commercial quantity, and the manner in which the

quantity was calculated is wrong. According to him, the petitioner

and the 1st accused were allegedly found with two packets each in

the bags held by them, and the total quantity thereof is 20.5 Kg.

Learned counsel for the petitioner points out that since the

contraband articles were found in separate bags held by the

accused persons, both of them should have been weighed

separately, and only since the same were weighed jointly, the

quantity became the commercial quantity. In such circumstances,

it is pointed out that implicating the petitioner for the offence

under Section 20(b) (ii) (c), is not legally sustainable, as from the

physical possession of the petitioner, no contraband article of

commercial quantity was detected. The learned counsel for the

petitioner also pointed out that the petitioner has been in custody

since 06.05.2022 and more than one year has elapsed since his

arrest date. He then placed reliance upon the decision rendered

by this Court in Jijendran v. State of Kerala in B.A.No.2816 of

2023, wherein certain observations were made by this Court with

regard to the circumstances in which the rigour of Section 37

NDPS Act gets diluted. Besides the same, he placed reliance upon

decisions rendered by the Honourable Supreme Court in Rajuram

v. State of Bihar [(2023) 1 Supreme 670], Mohd Muslim @

Hussan v. State (NCT of Delhi), [2023 LiveLaw (SC) 260,

online] and Dheeraj Kumar Shukla v. State of Uttar Pradesh

[SLP (Crl.) No.6690/2022].

6. On the other hand, the learned Public Prosecutor

opposed the said application. It is pointed out that the petitioner

and other accused were caught red-handed along with the

contraband articles. With regard to the contention raised by the

learned counsel for the petitioner relating to the weighing of the

contraband article together, it was pointed out that there are

ample materials indicating that the petitioner and the 1 st accused

have purchased the contraband article together from Tamil Nadu

and the same was being transported to Kerala. To substantiate the

same, ample materials including the call data records and other

relevant evidence are available. The dismissal of the application

was sought in such circumstances.

7. I have gone through the records. Earlier, when this

matter came up for consideration before this Court, a report was

called for from the learned Sessions Judge as to the time within

which the trial of case can be concluded. In response to the same,

a report dated 27.05.2023 has been placed on record by the

Sessions Judge, wherein it is mentioned that the case has been

posted on 22.07.2023 for hearing on charge, and the trial can be

completed within a period of six months.

8. When going through the contentions raised by the

petitioner, I am of the view that in the facts and circumstances of

the case, the decisions mentioned above cannot be taken into

consideration. It is true that contraband articles were found in

separate bags held by the petitioner as well as the 1 st accused.

However, from the part of the prosecution, there is a clear

explanation forthcoming for weighing both the bags together as

there are ample materials indicating that the same was purchased

by the petitioner and the other accused together and transported

the articles to Kerala. In the light of the aforesaid submission and

the materials placed on record, it is a matter for trial. As regards

the decision relied on by the learned counsel for the petitioner, in

Jijendran (supra), I am of the view that the same cannot be

applicable in the facts and circumstances of the case. In

paragraph No.11 of the said judgment, the circumstances in which

the rigour of Section 37 of the NDPS Act can be included are

mentioned. One of the observations in the said decision is that if

there is impossibility of completing the trial within a reasonable

time, i.e. within a period of six months, the question of granting

bail can be considered. In this case, there is already a report

provided by the learned Sessions Judge wherein it is reported that,

the trial of the said case can be completed within a period of six

months. The allegations are very serious, and the quantity is

commercial. The specific role was allegedly played by the

petitioner is also evident from the records.

In such circumstances, I do not find any justification for

granting bail to the petitioner. Therefore, this application is

dissmissed, but with an observation that, every endeavour shall be

made by the trial court, to complete the trial of the said case

within the time mentioned in the report dated 27.05.2023

submitted by the learned Sessions Judge.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/27.6.23

APPENDIX OF BAIL APPL. 3834/2023

PETITIONER ANNEXURES

Annexure 1 THE TRUE COPY OF THE SEIZURE MAHAZAR DATED 6/5/2022

Annexure 2 THE TRUE COPY OF THE ORDER DATED 15-09-

2022 IN CRL.MC-2587/2022