Kerala High Court
Karuppu Swamy vs State Of Kerala on 3 February, 2021
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
Bail Appl..No.1319 OF 2021
CRIME NO.14/2020 OF ANCHAL EXCISE RANGE OFFICE , KOLLAM
PETITIONER/ACCUSED:
KARUPPU SWAMY,
AGED 40 YEARS,
SON OF MURUGAN,
RESIDING AT 9 OF 6,
GURUSWAMY STREET,
KC ROAD,
SHENKOTTA VILLAGE,
SHENKOTTA TALLUK,
TAMILNADU
PIN-627809
BY ADV. SHRI.D.PADMANABHAN
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM
PIN-682031
OTHER PRESENT:
SRI.SANTHOSH PETER - SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.1319 OF 2021
2
ORDER
Dated this the 03rd day of February, 2021 APPLICATION FOR REGULAR BAIL The applicant is the 4th accused in Crime No.14 of 2020 of Anchal Excise Range, Kollam, for having allegedly committed offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the "NDPS Act"). The prosecution case, in brief, is this:
2. On 13.2.2020, the officials at Aryankavu Excise Check Post, intercepted a lorry bearing Registration No.TN 92/c/3736, which was being driven by the 1st accused. On examination of the vehicle, 864 packets of spasmo proxyvon, a Psychotropic substance, was seized from the possession of the 1st accused. He was arrested immediately and a crime was registered. His interrogation revealed that the applicant is also involved in the alleged transportation of the drug from Tamil Nadu. The applicant was arrested consequently on 17.9.2020, remanded to judicial custody and continues to be in custody. The applicant applied for bail before the sessions court, which was dismissed and subsequently, he approached this Court for bail by B.A.No.1319 OF 2021 3 filing BA.No.7103/2020 and vide order dated 16.11.2020, the bail application was dismissed on the ground that the embargo under Section 37 of the NDPS Act applies, since the offence committed is under Section 22(c) involving commercial quantity of narcotic drug and Section 29 is also incorporated, and the bail application was dismissed.
3. The defence set up by the applicant was that he implicated solely on the basis of a confession statement given by the 1 st accused and that there are no materials available to implicate him. The matter whether the applicant has been implicated solely on the basis of the confession statement given by the 1st accused or whether there is any corroborative evidence to indicate that he is also involved is a matter of evidence. The Honorable Supreme Court in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31], held that the statement given by a co- accused in a NDPS case, cannot be relied upon to enter into an order of conviction because the officer detecting an NDPS case is in the same status as a Police officer and therefore comes under the purview of 25 of the Evidence Act. But, nowhere is it stated that the confession statement of the co-accused cannot be accepted despite there being corroborative materials to indicate the involvement of the accused.
B.A.No.1319 OF 2021 4
4. The learned Public Prosecutor has submitted that there are materials to show that the applicant is having a medical shop and he has been supplying drugs from that medical shop to the 1st accused. who was apprehended while transporting the contraband for distribution in the State of Kerala. Under the circumstances, there are no reasonable grounds to believe that the applicant is not guilty and that he will not get involved in offences of similar nature.
5. Since the quantity involved is commercial, the embargo under S. 37 (1)(b)(ii) of the NDPS Act is applicable. The powers of the High Court to grant bail under S.439 Cr.P.C are subject to the limitations contained in S.37 of the NDPS Act. (See State of M. P. v. Kajad [AIR 2001 SC 3317], Narcotics Control Bureau v. Kishan Lal [AIR 1991 SC 558], State of Kerala Etc. v. Rajesh Etc. [(SC) 2020 (1) KHC 557]).
6. Moreover, successive application for bail cannot be entertained. An accused has the right to make successive applications for grant of bail. But, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications B.A.No.1319 OF 2021 5 (See Kalyan Chandra Sarkar v. Rajesh Ranjan, [2004 KHC 754 :
AIR 2004 SC]).
7. In Kalyan Chandra Sarkar v. Pappu Yadav, [2005 KHC 604 : AIR 2005 SC 921] the Apex Court has held as follows:
"Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application"
Once the application is dismissed, unless there are grounds and change of circumstances to indicate that the applicant is entitled to bail, consequent bail applications cannot be entertained, are well settled. And, therefore, the application is only to be dismissed and I do so.
8. The learned counsel submits that the 1st accused was released on bail by the trial court and that the final report has already been filed. Therefore, those are changes of circumstances which would enable the applicant to entitle for bail. I am not aware about how the first accused was granted bail by the trial court ignoring the mandate under section 37 of the NDPS Act. The fact that the final B.A.No.1319 OF 2021 6 report is filed, is no reason to grant bail. In Achint Navinbhai Patel @ Mehesh Shah v. State of Gujarat and Another [AIR 2003 SC 2172], it was held by the Honourable Apex Court that an accused facing trial under the NDPS Act, for the last eight years is not entitled to bail though the final report has been filed and the trial has been prolonged endlessly. The embargo under Section 37 of the NDPS Act applies even in cases, where there is appeal preferred by the accused. And, therefore, the arguments advanced by the learned counsel appearing for the applicant is not acceptable. The application is dismissed.
Sd/-
ASHOK MENON JUDGE NR/03/02/2021