Kerala High Court

Muhammed Afzal vs State Of Kerala on 3 October, 2024

                                                                 2024:KER:73539
B.A.NO.4901/2024                       1


                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                   THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

      THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946

                          BAIL APPL. NO. 4901 OF 2024

       CRIME NO.905/2022 OF Angamali Police Station, Ernakulam

       AGAINST THE JUDGMENT DATED 07.12.2023 IN Bail Appl.NO.10192

OF 2023 OF HIGH COURT OF KERALA

PETITIONER/ACCUSED NO.2:

              MUHAMMED AFZAL,
              AGED 27 YEARS
              S/O. MUHAMMAD ALI, PUTHENPURAYIL (H) NJATTAPADOM,
              ALANGAD P.O., ERNAKULAM, PIN - 683511.


              BY ADV AMRUTHA P S


RESPONDENT/COMPLAINANT:

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

              PUBLIC PROSECUTOR SRI M P PRASANTH


      THIS     BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
12.09.2024, THE COURT ON 03.10.2024 PASSED THE FOLLOWING:
                                                             2024:KER:73539
B.A.NO.4901/2024                     2




                      A. BADHARUDEEN, J.
              ================================
                         B.A No.4901 of 2024
            ================================
                Dated this the 3rd day of October, 2024


                                 ORDER

This is the fourth application for regular bail filed by the

petitioner, who is the 2nd accused in Crime No.905/2022, of Angamali

Police Station, Ernakulam.

2. Heard the learned counsel for the petitioner as well as

the learned Public Prosecutor in detail.

3. I have perused the relevant documents.

4. The prosecution case in brief is that, accused Nos.1 to 4

hatched conspiracy to possess and sell MDMA; and in continuation of the

said conspiracy, they jointly collected 198.36 grams of MDMA and stored

the same in Bluetooth speakers. Thereafter, the said MDMA was

forwarded through Blue Dart DHL Courier service in Mumbai and 2024:KER:73539

received the same in Blue Dart DHL Office in Angamaly and the same

was found in possession of the 1st accused when he had kept the same in a

TATA Nano car, bearing Registration No.KL04-AH-4823, near Malabar

Gold Jewellery, Angamaly. Thereafter, the 1st accused was arrested and

crime alleging commission of offences punishable under Sections 22(c),

22(b), 20(b)(ii)(A), 27A & 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short, 'the NDPS Act' hereinafter), was

registered.

5. The learned counsel for the petitioner canvassed regular

bail to the petitioner, who has been in custody from 05.10.2022 on the

submission that trial not so far completed. Therefore, the petitioner, who

has been in custody for about 2 years, is liable to be released on bail.

6. Whereas, the learned Public Prosecutor strongly opposed

grant of bail and pointed out involvement of the petitioner in this crime

with materials to connect him in commission of this crime. It is submitted

that accused Nos.1 and 2 jointly stayed at the lodge in Andheri, Mumbai

from 04.09.2022 to 15.09.2022 and they had given I.D proof of one Alif

Muhammed Saifudheen and the same was seized from the house of the 2024:KER:73539

2nd accused during investigation. It is also argued that the 2 nd and 3rd

accused invested money in the account of the 1st accused and the bank

details are also available in this regard. It is pointed out that there are

documents to connect the 2nd and 3rd accused also in this regard, since they

had entrusted money with the 1st accused to purchase the contraband

seized from the possession of the 1st accused. According to the learned

Public Prosecutor, all accused in this case, are in custody and therefore,

trial, involving huge quantity of contraband may be expedited.

7. The second bail application filed by the petitioner was

dismissed for the reasons stated in paragraphs 6 and 7 as under, with

direction to the trial court to expedite the trial.

"6. In this matter, a report from the learned Special Judge, North Paravur, was called for. It is reported by the learned Special Judge that all the accused in this case have been in custody and the trial could be expedited. The relevant portion of the report is as under:

"S.C.No.184/2023 was posted to 12/12/2023 for framing of charges. As per reference No.3 above, this court had already sent a report on time required to dispose the case. Considering the report of this court, the Hon'ble High Court, in the bail application No.9141/2023 preferred by 3rd accused vide order dated 13/11/2023, 2024:KER:73539

directed this court to dispose the case within 6 months from the date of receipt of copy of the order. It is also submitted that all the accused in this case are in custody. This court is ready to dispose the case as directed in reference No.2, by the Hon'ble High Court."

7. This Court laid down certain parameters to dilute the rider under Section 37 of the NDPS Act, involving commercial quantity. In the decision in Fasil v. State of Kerala, reported in [2023 (3) KHC 212], this Court 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 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."

The ratio in the said decision would apply only cases where trial could 2024:KER:73539

not be materialized within a period of 6 months.

In the case at hand, the learned Special Judge readily agreed to dispose of the case, within a period of 6 months in view of the direction issued by this Court when bail application at the instance of the 3rd accused was considered. Therefore, the ratio in Fasil's case (supra) could not be applied in the facts of this case. Accordingly, this bail application stands dismissed, directing the learned Special Judge, to dispose of S.C.No.184/2023 on the files of the Sessions Court (Additional District and Sessions Court - II), North Paravur, within a period of 6 months in obedience to the earlier order. "

8. Now as per the report sent by the learned Special Judge

on 17.08.2024, FSL report was received on 29.05.2024 and request is

made to the RFSL to get sufficient copies of the report. It appears that the

procedure adopted by the learned Special Judge is to delay the trial, even

after getting the FSL report as early as on 29.05.2024 and now the learned

Special Judge seeks four months' time to dispose of the case.

9. On going through the report of the learned Special

Judge, request for further four months' time to dispose of the case is not at

all convincing, even after receipt of the FSL report. In this case, earlier

bail applications filed by the petitioner were dismissed holding that the

rider under Section 37 of the NDPS Act could not be diluted in a case

involving 198.36 gram of MDMA. Since there is no change in 2024:KER:73539