Subin Raj vs State Of Kerala
2023 Latest Caselaw 9578 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     FRIDAY, THE 8TH DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945
                       BAIL APPL. NO. 4260 OF 2023
              AGAINST THE ORDER/JUDGMENT SC 1041/2022 OF
              Bail Appl. 618/2023 OF HIGH COURT OF KERALA
PETITIONER:

            SUBIN RAJ
            AGED 24 YEARS
            S/O. RAJAN, DANIEL BHAVAN, KALLIKKAD VILLAGE,
            ANDIVILAKOM, KATTAKKADA TALUK, THIRUVANANTHAPURAM .,
            PIN - 695543
            BY ADV E.VIJIN KARTHIK


RESPONDENT:

            STATE OF KERALA
            REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA,
            KOCHIN, PIN - 682031
            BY ADV PUBLIC PROSECUTOR


            SR PP K DENNY DEVASSY


     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
08.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 4260 OF 2023
                                       2

                            ORDER

Dated this the 8 day of September, 2023 th

This is the second application for Regular Bail filed by the

petitioner who is the first accused in SC No.1041/2022 pending

before the Special Court (Additional Sessions Court-III), Palakkad

arose out of Crime No.24/2022 of Excise Range Office, Palakkad,

where the petitioner alleged to have committed offences

punishable under Sections 20(b)(ii)(c) read with Section 29 of

Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred as 'NDPS Act', for short), and the petitioner

seeks regular bail.

2. Heard the learned Counsel for the petitioner and the

learned Public Prosecutor in detail. Perused the records available.

3. The prosecution allegation in this case is that at about

3.00 p.m. on 06.05.2022, accused Nos.1 and 2 were found in

possession of 20.5 Kg of Ganja near the foot over bridge in

between platform Nos.2 and 3 of railway station, Palakkad.

Accordingly, the accused Nos.1 and 2 were nabbed and the

contraband taken into custody. Thereafter, crime was registered

alleging commission of the above offences. BAIL APPL. NO. 4260 OF 2023

4. The learned counsel for the petitioner vehemently

argued for grant of bail to the petitioner on the submission that he

is innocent. According to the learned counsel for the petitioner,

the Excise party jointly recovered the alleged contraband

separately possessed by the petitioners and taken the same

together after finding that the same would come to 20.5 Kgs,

commercial quantity. According to the learned counsel for the

petitioner, if the contraband possessed by the petitioner/the 1st

accused and 2nd accused, were separately weighed, the quantity

should be intermediate quantity.

5. It is submitted by the learned Counsel for the petitioner

that in this case, the petitioner has been in custody for the last

more than one year, exactly from 06.05.2022. Therefore, the

petitioner, who has no criminal antecedents, is liable to be

released on bail, following the ratio in Fasil Vs. State of Kerala

[2023 (3) KHC 212].

6. The learned Public Prosecutor though opposed bail,

since commercial quantity of contraband is involved, where the

rider under Sec.37 of the NDPS Act would squarely apply.

However, it is fairly conceded by the learned Public Prosecutor

that the petitioner is a first time offender and he has no BAIL APPL. NO. 4260 OF 2023

involvement in any other crimes. Further the petitioner has been

in custody since 06.05.2022.

7. The earlier application filed by the petitioner seeking

Regular Bail was dismissed by this Court as per order dated

08.02.2023, in BA No.618/2023, copy of the same is Annexure A3

herein. As per Annexure A3, this Court dismissed the earlier Bail

Application mainly on the ground that the materials available did

not justify dilution of rider under Sec.37 of the NDPS Act.

However, this Court has set out certain criterion in Fasil's Case

(supra), to dilute the rider under Sec.37 of the NDPS Act, wherein

it has been held as under:

"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 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 BAIL APPL. NO. 4260 OF 2023

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 just 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."

8. In this matter, petitioner has been in custody from

06.05.2022 and trial not so far started. That apart, he is a first

time offender. Therefore, ratio of Fasil's case (supra) would apply

to the facts of this case and in view of the matter the rider under

Sec.37 stands diluted for the purpose of grant of bail and this

petition stands allowed on the following conditions:

i. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) and with two solvent sureties, for the like amount to the satisfaction of the Special court concerned.

BAIL APPL. NO. 4260 OF 2023

ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial.

iii. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court.

iv. The petitioner shall surrender his passport before the Special Court on the date of execution of the bail bonds or within 7 days therefrom. If the petitioner has no passport, he shall file affidavit to that effect.

v. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted.

sd/-

A. BADHARUDEEN JUDGE

Nsd BAIL APPL. NO. 4260 OF 2023

APPENDIX OF BAIL APPL. 4260/2023

PETITIONER ANNEXURES Annexure 1 THE TRUE COPY OF THE SEIZURE MAHAZAR DATED 5-06-2022 Annexure 2 THE TRUE COPY OF THE ORDER DATED 15-09-

2022 IN CRL.MC-2586/2022 Annexure 3 THE TRUE COPY OF THE ORDER DATED 08.02.2023 IN B.A. NO. 618 OF 2023