Kerala High Court
Sujin G.S vs State Of Kerala on 4 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 4TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945
BAIL APPL. NO. 5508 OF 2023
AGAINST THE ORDER/JUDGMENT SC 677/2022 OF ADDITIONAL DISTRICT
COURT (ADHOC)-II, THIRUVANANTHAPURAM
PETITIONER:
SUJIN G.S., AGED 26 YEARS, S/O GANGADHARAN, R/AT
VATTAVILA PUTHENVEEDU, KOTTUKALKONAM,
THIRUVANANTHAPURAM DISTRICT, PIN - 695509
BY ADVS.
S.JIJI
M.M.BABY
RESPONDENTS:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
ADDL. STATE PUBLIC PROSECUTOR(AG-28)
SRI. C.K. SURESH, SR. PUBLIC PROSECUTOR.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A. No.5508/2023 -2-
ORDER
The petitioner is the 12th accused in Crime No.5/2021 of Kattakada
Excise Range office which is now pending as SC No.677/2022 on the file of
the Additional Sessions Court-II, Thiruvananthapuram alleging commission
of offences under Sections 8 (c), 20 (b) (ii) (C) and 27 of the Narcotic Drugs
and Psychotropic Substances Act, 1985. ('the NDPS Act)
2. The prosecution allegation is that on 30-09-2021 a quantity of
about 187 Kgs of Ganja was recovered from the house of the 1 st accused and a
further quantity of 59.400 Kgs of Ganja was seized on the basis of the
information given by the 3rd accused. The prosecution allegation is that
accused Nos.1, 5 and 8 proceed to Andhra Pradesh and procured the sizable
quantity of Ganja involved in this case from accused No.10 who sent the
consignment after camouflaging the same as kitchen equipments
(accompanied by a fictitious GST bill) by parcel service to
Thiruvananthapuram. Accused Nos.2, 3, 4 and 6 allegedly collected the parcel
from the office of VRL Parcel service. Accused Nos.7, 11 and 12 are stated to
be the financiers who financed the procurement of Ganja from accused No.10
and accused No.9 is stated to be the master mind behind the entire operation.
3. The learned counsel appearing for the petitioner would submit
that the petitioner has been in custody from 17-03-2022. It is submitted that
there are no criminal antecedents reported against the petitioner. It is
submitted that this court in Fasil v. State of Kerala; 2023 (3) KHC 212
had after analysing the law laid down by the apex court in various judgments
held that notwithstanding the provisions contained in Section 37 of the NDPS
Act an accused in a case involving commercial quantity of a narcotic drug
could be granted bail if 3 conditions are satisfied. It is submitted that these 3
conditions are set out in paragraph 10 of the judgment in Fasil (supra) are;
"(1) the accused should not have any criminal antecedents.
(2) the accused has been in custody for a long time, at least a period
more than one year (say for eg. about fourteen months in the instant case).
(3) the impossibility of trial within a reasonable time (for this purpose,
the Court granting bail should ensure that trial could not be completed at
least within a period of six months)."
It is submitted that all these conditions are satisfied in the present case. It is
submitted where the investigation has been completed and final report has
already been filed in the matter. It is submitted that there is no possibility of
the trial being completed in the near future and since the petitioner has no
criminal antecedents and since he has been in custody from 17-03-2022, this
is a fit case that the petitioner can be directed to be released on bail.
4. The learned Senior Public Prosecutor vehementally opposes the
grant of bail. The case diary of Crime No.5/2021 of Kattakada Excise Range
office along with a copy of the final report filed has been placed for my
perusal. The learned Senior Public Prosecutor refers to the final report to
contend that the investigating agency has collected sufficient materials
against the petitioner / 12th accused to show that he had involved in
purchasing huge quantity of Ganja from State of Andhra Pradesh and had
also involved himself in the transport of the said Ganja from Andhra Pradesh
through parcel service. It is submitted that the law laid down by this court in
Fasil (supra) does not appear to lay down the correct law as the decision
appears to run contrary to the judgment of three Judges' bench of the
Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal;
2022 KHC 6720 where in paragraph 14 and 15 the Supreme Court held as
follows;
14. To sum up, the expression "reasonable grounds" used in clause (b)
of Sub-Section (1) of Section 37 would mean credible, plausible and
grounds for the Court to believe that the accused person is not guilty of the
alleged offence. For arriving at any such conclusion, such facts and
circumstances must exist in a case that can persuade the Court to believe
that the accused person would not have committed such an offence. Dove-
tailed with the aforesaid satisfaction is an additional consideration that
the accused person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for
bail in the context of the Section 37 of the Act, the Court is not required to
record a finding that the accused person is not guilty. The Court is also not
expected to weigh the evidence for arriving at a finding as to whether the
accused has committed an offence under the NDPS Act or not. The entire
exercise that the Court is expected to undertake at this stage is for the
limited purpose of releasing him on bail. Thus, the focus is on the
availability of reasonable grounds for believing that the accused is not
guilty of the offences that he has been charged with and he is unlikely to
commit an offence under the Act while on bail."
It is also submitted that the judgment of the Supreme Court in Achint
Navinbhai Patel Alias Mahesh Shah v. State of Gujarat and
others; (2002) 10 SCC 529 is authority for the proposition that mere
possibility of delay in concluding the trial is no ground to grant bail. It is also
submitted that the State has already challenged the judgment of this court in
Fasil (supra) before the Supreme Court.
5. The learned counsel appearing for the petitioner in reply would
submit with reference to the judgment of the Supreme Court in Rabi
Prakash v. the State of Odisha and others (order dated 13-07-2023 in
SLP (Crl) No.4169/2023) wherein it was held that when there is a prolonged
incarceration without trial the same may militate against the Fundamental
Rights guaranteed under Article 21 of the Constitution of India and in such a
situation, Right to Liberty must override the statutory embargo created under
Section 37 of the NDPS Act.
6. Having heard the learned counsel for the petitioner and the
learned Senior Public Prosecutor, I am of the view that the petitioner is not
entitled to bail. A perusal of the final report suggests that the investigating
agency has alleged that the petitioner was directly involved in financing the
purchase of Ganja from Andhra Pradesh with the help of the 10 th accused.
Two telephone numbers of the petitioner have been referred to in the final
report and certain frequent contacts with the other accused in the case have
been cited to establish that the petitioner was part of a conspiracy to purchase
huge quantity of Ganja from the state of Andhra Pradesh and to bring it to the
state of Kerala and to distribute it in the state of Kerala. These statements in
the final report are not evidence and have not been yet proved against
petitioner. However, considering the twin conditions imposed by Section 37
of the NDPS Act, it is necessary for this Court to look at those materials to
decide as to whether the twin conditions in Section 37 of the NDPS Act are
satisfied in order to direct that an accused in a case involving commercial
quantities of a narcotic drug is to be directed to be released on bail. It is no
doubt true that the Supreme Court in its order dated 13-07-2023 in Rabi
Prakash (supra) has taken the view that where the provisions of Section 37
of the NDPS Act are pitted against the right to liberty guaranteed under
Article 21 of the Indian Constitution of India and where there has been a long
period of incarceration, the Court must lean in favour of granting bail
notwithstanding the statutory embargo under Section 37 of the NDPS Act.
However, it must be noted that in the facts of the case before the Supreme
Court, the accused had been in custody for more than 3 ½ years, which is not
the case here. The petitioner has been arrested only on 17-03-2022.
Therefore, I am of the view that the view taken by the Supreme Court in Rabi
Prakash (supra) is also not applicable in the facts and circumstances of
this case. Again the judgment of the Supreme Court in Mohit Aggarwal
(supra) would clearly indicate that there must be credible and plausible
grounds for the court to believe that the accused is not guilty of the alleged
offence, for taking a view that the condition in Clause (b) of sub-section (1) of
Section 37 of the NDPS Act is satisfied.
In the facts and circumstances of this case, I have no reasonable
grounds to believe that the allegations raised against the petitioner are
without any basis. Therefore, this bail application is dismissed, making it
clear that the observations contained in this order are only for the purposes of
considering the entitlement of the petitioner to bail and shall not prejudice
the petitioner in the trial of the case.
Sd/-
GOPINATH P.
JUDGE
AMG
APPENDIX OF BAIL APPL. 5508/2023
PETITIONER ANNEXURES
Annexure A-1 TRUE COPY OF THE ORDER DATED 13-07-2022 IN BAIL
APPL. NO. 3834/2022 OF THIS HON'BLE COURT
Annexure A-2 TRUE COPY OF THE ORDER DATED 14-11-2022 IN BAIL
APPL. NO. 6488/2022 OF THIS HON'BLE COURT
Annexure A-3 TRUE COPY OF THE ORDER OF THE ADDL. SESSION'S
JUDGE-II, THIRUVANANTHAPURAM, IN CRIMINAL M.P. NO.
299/2023 IN S.C. NO. 677/2022 DATED 15-02-2023
