Shahul.P vs State Of Kerala
2024 Latest Caselaw 33477 Ker

Kerala High Court

Shahul.P vs State Of Kerala on 21 November, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                          2024:KER:87292




              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

  THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946

                      BAIL APPL. NO. 7982 OF 2024

        CRIME NO.430/2024 OF KATHIRUR POLICE STATION, KANNUR

        AGAINST THE ORDER/JUDGMENT DATED IN CMP NO.753 OF 2024 OF

SPECIAL COURT (NDPS ACT CASES), VADAKARA


PETITIONER/SOLE ACCUSED:

            SHAHUL.P,
            AGED 29 YEARS
            S/O. MOIDU,PUTHIYAKANDIYIL HOUSE,
            NALLEACHERI MUKK, PULLIODE EAST,
            KATHIRUR. P.O,KANNUR DISTRICT, PIN - 670642

            BY ADVS.
            CIBI THOMAS
            SWARNA THOMAS
            ANUSREE K.


RESPONDENTS/STATE/COMPLAINANT:
     1     STATE OF KERALA,
           REPRESENTED BY PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, PIN - 682031

    2       THE STATION HOUSE OFFICER,
            KATHIRUR POLICE STATION,
            KATHIRUR . P.O,KANNUR DISTRICT, PIN - 670642


            BY SMT. SEETHA. S
            SENIOR PUBLIC PROSECUTOR

     THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
21.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                   2024:KER:87292

B.A.No.7982 of 2024            -:2:-


             Dated this the 21st day of November, 2024

                           ORDER

The application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole

accused in Crime No.430/2024 of the Kathirur Police

Station, Kannur, which is registered against him for

allegedly committing the offences punishable under

Sections 20(b)(ii)(A), 22(c), and 29 of the Narcotic Drugs

and Psychotropic Substances Act ('the Act' for short),

1985. The petitioner was remanded to judicial custody on

08.07.2024.

2. The crux of the prosecution case is that:

on 08.07.2024, at around 03:20 hours, the accused was

found in conscious possession of 18.430 grams of

MDMA, 5.140 grams of ganja, and Rs. 83,000/-. The

accused was arrested on the spot with the contraband

articles. Thus, the accused has committed the above

offences.

2024:KER:87292

3. Heard; Sri. Cibi Thomas, the learned

counsel appearing for the petitioner and Smt. Seetha.S.,

the learned Public Prosecutor.

4. The learned counsel for the petitioner

submitted that the petitioner is totally innocent of the

accusations levelled against him. There is no material to

substantiate the petitioner's culpability in the crime. The

Investigating Officer has deliberately implicated the

petitioner as an accused in the crime. The petitioner has

reliably learnt that, as per the chemical analysis report,

the contraband involved in the case is

'methamphetamine' and not 'MDMA' as alleged by the

prosecution. Therefore, the contraband involved in the

case is of an intermediate quantity. The other

contraband, ganja, is of a small quantity. The petitioner

has been languishing in jail for the last 100 days, the

investigation in the case is not complete, and the charge

sheet (complaint) has not been laid. Therefore, the

petitioner is entitled to statutory bail since the offences 2024:KER:87292

alleged against the petitioner are punishable for a period

up to 10 years . Hence, the application may be allowed.

5. The learned Public Prosecutor opposed

the application. She submitted that the investigation in

the case is in progress. She also stated that if the

petitioner is released on bail, there is every likelihood of

him committing a similar offence. Hence, the application

may be dismissed. Nonetheless, she made available the

chemical analysis report submitted by the Regional

Chemical Examiner's Laboratory, Kozhikode, dated

18.09.2024, to substantiate that the contraband involved

in the case is 'methamphetamine' and not 'MDMA'.

6. The prosecution was lodged against the

petitioner on the allegation that he was found in

conscious possession of 18.430 grams of MDMA and

5.140 grams of ganja.

7. On an appreciation of the materials on record,

it is seen that, the Court of the Special Judge (NDPS Act

cases), Vadakara, had dismissed the petitioner's 2024:KER:87292

application for bail considering the fact that the first

contraband is of a commercial quantity. As per the

chemical analysis report referred to above, it has turned

out that the contraband of MDMA is methamphetamine.

Therefore, the said contraband is of an intermediate

quantity, and the other contraband i.e., 5.140 grams of

ganja, is of a small quantity. Indisputably, petitioner has

been in judicial custody since 08.07.2024, i.e., for the

last 100 days, the investigation in the case is not

complete, and the complaint (charge sheet) has not been

laid. Furthermore, the petitioner does not have any

criminal antecedents. All the offences alleged against the

petitioner are punishable for a period up to 10 years.

8. In the aforementioned context, it is apposite to

refer to Section 187(1) to (4) of the BNSS, which reads

as follows:

187. Procedure when investigation cannot be completed in twenty-four hours.(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by 2024:KER:87292

section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding--

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more;

2024:KER:87292

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

(4) No Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the audio-video electronic means."

9. While interpreting an analogous provision

under Section 167 of the Code of Criminal Procedure,

1973, a three-Judge Bench of the Honourable Supreme

Court in Uday Mohanlal Acharya v. State of

Maharashtra [(2001) 5 SCC 453], following the decision

in Sanjay Dutt v. State through C.B.I., Bombay

[(1994) 5 SCC 410], held as follows:

"13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the 2024:KER:87292

investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate."

10. In the instant case, as the petitioner has been

in judicial custody for the last 100 days, the contrabands

involved in the case are of intermediate and small

quantities, the investigation in the case is not complete,

the petitioner does not have any criminal antecedents,

the offences alleged against the petitioner are

punishable for a period up to 10 years, and the complaint

has not been laid, I am satisfied that the petitioner is

entitled to be released on statutory bail, since it is his

indefeasible right under Section 187(3) of the BNSS.

Hence, I allow the bail application.

In the result, the application is allowed, by

directing the petitioner to be released on bail on him

executing a bond for Rs.50,000/- (Rupees fifty thousand

only) with two solvent sureties each for the like sum, to 2024:KER:87292

the satisfaction of the court having jurisdiction, which

shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the complaint (charge-sheet) is laid. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii)The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the Jurisdictional Court at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the Jurisdictional Court on the date of execution of the bond;

(v) In case of violation of any of the conditions 2024:KER:87292

mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the Jurisdictional Court.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and Another [2020 (1) KHC 663].

Sd/-

C.S.DIAS,JUDGE mtk/21.11.24 2024:KER:87292

APPENDIX OF BAIL APPL. 7982/2024

PETITIONER ANNEXURES

Annexure -I TRUE COPY OF THE ORDER DATED 19.08.2024 IN CMP.NO. 753/2024 OF THE SPECIAL JUDGE (NDPS ACT CASES), VATAKARA