Kerala High Court
Irshad vs State Of Kerala on 18 October, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:77440
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 18TH DAY OF OCTOBER 2024 / 26TH ASWINA, 1946
BAIL APPL. NO. 7887 OF 2024
CRIME NO.1231/2024 OF TOWN EAST POLICE STATION, THRISSUR
PETITIONER:
IRSHAD,
AGED 23 YEARS
S/O.IQBAL, PUTHUVEETTIL HOUSE, IRINGAPURAM DESOM &
VILLAGE, GURUVAYUR, CHAVAKKAD TALUK,THRISSUR
DISTRICT., PIN - 680103
BY ADV NIREESH MATHEW
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
OTHER PRESENT:
SR PP SMT PUSHPALATHA M K
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
18.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.7887/2024
-:2:-
2024:KER:77440
ORDER
Dated this the 18th day of October,2024 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023('BNSS', for the sake of brevity), by the fourth accused in Crime No.1231/2024 of the Town East Police Station, Thrissur, which is registered against four accused persons for allegedly committing the offences punishable under Sections 22(c), 29 & 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act'). The petitioner was remanded to judicial custody on 02.08.2024.
2. The concise case of the prosecution, is that:
on 22.07.2024, at around 04:20 hours, the first accused was found in conscious possession of 45 grams of MDMA. He was arrested on the spot with the contraband article. During the course of the B.A.No.7887/2024 -:3:- 2024:KER:77440 investigation and interrogation of the first accused, it was revealed that it was the fourth accused who had given financial assistance to the first accused. The accused Nos.2 & 3 are also involved in the case. Thus, the accused have committed the above offences.
3. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioner and Smt. Pushpalatha M.K., the learned Senior 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 involvement in the crime. The petitioner has been implicated in the crime solely on the basis of the confession statement of the first accused, which is inadmissible in law in the light of the exposition of law by the Honourable Supreme B.A.No.7887/2024 -:4:- 2024:KER:77440 Court in Tofan Singh v. State of Tamilnadu [2020 (2) KLD 781]. The petitioner has reliably learnt that the contraband article allegedly seized from him is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity, and the offence under Section 22(c) of the NDPS Act is not attracted. In any given case, the petitioner has been in judicial custody for the last 78 days, the investigation in the case is practically complete, and the recovery has been effected. However, the charge-sheet has not been filed. Hence, the petitioner is entitled to be released on statutory bail.
5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is enlarged on bail, there is every likelihood of him committing a similar offence. Nevertheless, she made B.A.No.7887/2024 -:5:- 2024:KER:77440 available the chemical analysis report submitted by the Regional Forensic Science Laboratory, Thrissur, dated 11.09.2024, which shows that the contraband involved in the case is 'methamphetamine' and not 'MDMA'. She also did not dispute the fact that the petitioner does not have any criminal antecedents.
6. The prosecution was lodged against the accused on the allegation that the first accused was found in conscious possession of 45 grams of MDMA,. It was the petitioner who gave financial assistance to the first accused. Now, as per the chemical analysis report, it has turned out that the contraband article is 'methamphetamine' and not 'MDMA'. Therefore, the contraband is only of an intermediate quantity, and only the offence under Section 22(b) of the NDPS Act may lie. However, that is a matter to be investigated. The fact remains that the petitioner has been in B.A.No.7887/2024 -:6:- 2024:KER:77440 judicial custody for the last 77 days, the investigation in the case is not complete, and the complaint has not been filed.
7. 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 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 B.A.No.7887/2024 -:7:- 2024:KER:77440 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;
(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."
8. While interpreting an analogous provision under Section 167 of the Code of Criminal Procedure, B.A.No.7887/2024 -:8:- 2024:KER:77440 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 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."
9. In the instant case, as the petitioner has been in judicial custody for the last 77 days, the investigation in the case is not complete, the offences now 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(2) of the BNSS. Hence, I allow B.A.No.7887/2024 -:9:- 2024:KER:77440 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 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 alternate Saturdays between 9 a.m. and 11 a.m till the filing of the complaint (charge-sheet). 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;B.A.No.7887/2024 -:10:-
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(iii)The petitioner shall not commit any offence while he is on bail;
(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;
(v) In case of violation of any of the conditions 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 court below.
(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate B.A.No.7887/2024 -:11:- 2024:KER:77440 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
DST/18.10.24 //True copy//
P.A. To Judge