Dheepesh vs State Of Kerala
2023 Latest Caselaw 10366 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 SATURDAY, THE 30TH DAY OF SEPTEMBER 2023 / 8TH ASWINA, 1945
                      BAIL APPL. NO. 8157 OF 2023
        CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
AGAINST THE ORDER Bail Appl. 884/2022 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED NO.8:

             DHEEPESH,AGED 24 YEARS
             RESIDING AT DOWDEL HOUSE,
             KARAPPARAMBU VENGERI VILLAGE,
             KOZHIKODE TALUK, KARUVASSERY P.O.
             KOZHIKODE - 673010

             BY ADVS.
             SREENATH VIJAYARAGHAVAN
             AKHILA C.



RESPONDENTS/STATE AND INVESTIGATING OFFICER:

    1        STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM - 682031

    2        ASSISTANT COMMISSIONER
             EXCISE CRIME BRANCH, ERNAKULAM - 682031

OTHER PRESENT:

             PP - M.C.ASHI



        THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.09.2023,     THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 BA No.8157 of 2023                     2




                               VIJU ABRAHAM, J.
               .................................................................
                              B.A. No.8157 of 2023
               .................................................................
              Dated this the 30th day of September, 2023


                                        ORDER

This is an application for regular bail.

2. Petitioner is arrayed as the 8th accused in Crime No.36 of

2021 of Excise Range Office, Ernakulam registered alleging

commission of offences punishable under Sections 22(c), 25 and 29

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in

short "NDPS Act").

3. The prosecution allegation is that on 19.08.2021 at about

1.40 a.m., the Excise Enforcement and Anti Narcotic Special Squad,

Ernakulam acting on a tip-off conducted a search in Marhaba

Apartment, Vazhakala, and seized 83.896 grams of MDMA illegally

kept for sale in an apartment in the 1 st floor of C block and arrested

accused nos. 1 to 5. Accused nos.1 to 5 revealed that the contraband

was brought for with the aid of other accused.

4. Petitioner submits that he has absolutely no connection

with the alleged crime and no contraband was seized from his

possession. Petitioner is implicated as an accused only on the basis

of the confession statement of the co-accused which is inadmissible

going by the judgment of the Apex Court in Tofan Singh v. State of

Tamil Nadu, (2021) 4 SCC 1. Even going by the prosecution

allegation the role attributed to the petitioner is that he had financial

transactions with other accused. Petitioner submits that he was

arrested on 20.09.2021 and is in custody since then. Though he

moved an application for bail earlier, the same was dismissed as per

Annexure-A1 order. Petitioner further submits that in the case of the

15th accused against whom also similar allegation of monetary

transactions with the other accused was alleged, he was granted bail

by the Apex Court as per Annexure-A2 order. He would further submit

that accused nos.7, 9,10, 13, 14, 16, 20 and 21 were also granted bail

by this Court. Though another crime was registered subsequent to his

apprehension in the present crime, no final report has been filed and

thereupon the petitioner was granted Annexure-A4 statutory bail in the

said crime. It is submitted that the petitioner is in custody from

20.09.2021 onwards and the trial has not commenced despite specific

directions issued by this court in this regard.

5. Learned Public Prosecutor opposed the application for

bail mainly contending that though no contraband was seized from the

possession of the petitioner, the allegation against the petitioner is that

he has funded the commission of the alleged crime and the

investigation revealed that there was huge transactions in the account

maintained by the petitioner and he had monetary transactions with

accused nos.1, 5, 16 and 17 and further that he had mobile contacts

with accused nos.5, 10, 17, 18 and 19. Learned Public prosecutor

would submit that all these would reveal the involvement of the

petitioner in the alleged crime.

6. Admittedly petitioner is in custody from 20.09.2021

onwards. The trial of the case has not yet started. In the other crime

registered against him after his apprehension in the present crime no

final report has been filed and the petitioner was granted statutory

bail. It is seen that accused nos.7, 9, 10, 13, 14, 15, 16, 20 and 21

have already been granted bail. The Apex Court in Mohd. Muslim @

Hussain v. State (NCT of Delhi) [2023 SCC online SC 352] held that

grant of bail on the ground of undue delay in trial cannot be set to be

fettered by Section 37 of the Act. The Apex Court in Rabi Prakash v.

The State of Odisha, (SLP Crl. No. 4169 of 2023) has also reiterated

that prolonged incarceration generally militates against the most

precious fundamental right guaranteed under Article 21 of the

Constitution of India and in such a situation, the conditional liberty

must override the statutory embargo under Section 37 of the NDPS

Act.

Taking all these aspects into consideration and

specifically the period of detention undergone by the petitioner, I am

inclined to grant bail to the petitioner, but taking into consideration the

seriousness of the allegation, the same shall only be on stringent

conditions. In the result, the bail application is allowed and it is

ordered that the petitioner shall be released on bail on the following

stringent conditions:

(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 like-

sum to the satisfaction of the jurisdictional court.

(ii) He shall appear before the investigating officer in Crime

No.36 of 2021 of Excise Range Office, Ernakulam on all second

Saturdays at 11.00 a.m. until completion of the trial and thereafter as

and when required by the investigating officer.

(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 the above said crime;

(vi) He shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the investigating

officer in Crime No. 36 of 2021 of Excise Range Office, Ernakulam

may file an application before the jurisdictional court, for cancellation

of bail.

Sd/-

VIJU ABRAHAM JUDGE

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