Kerala High Court
Akbar C.S vs State Of Kerala on 8 August, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:60470
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 8TH DAY OF AUGUST 2024 / 17TH SRAVANA, 1946
BAIL APPL. NO. 6292 OF 2024
CRIME NO.514/2024 OF THRIKKAKARA POLICE STATION, ERNAKULAM
PETITIONER/S:
AKBAR C.S
AGED 28 YEARS
S/O SAMMAD CHOORAKOTTAYILMOOLA (H) MUNDANANPADAM,
THRIKKAKKARA NORTH VILLAGE NEAR KARUNALAYAM,
ERNAKULAM,
PIN - 682024
BY ADV.
LEKSHMI BABU.B.S.
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
PIN - 682031
SMT.SEETHA S (SENIOR PUBLIC PROSECUTOR)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.08.2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:60470
BAIL APPL.NO.6292/2024
2
ORDER
Dated this the 08th day of August, 2024 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS') by the 6th accused in Crime No.514/2024 of the Thrikkakkara Police Station, Ernakulam, which is registered against 7 accused persons for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). The petitioner was arrested and remanded to judicial custody on 10.05.2024.
2. The gist of the prosecution case is that; on 10.05.2024, at around 16.55 hours, seven accused persons were found in possession of 48.59 grams of 2024:KER:60470 BAIL APPL.NO.6292/2024 3 MDMA in an apartment at Thrikkakkara, Ernakulam. They were arrested on the spot with the contraband article. Thus, the accused have committed the above offences.
3. Heard; Smt. Lekshmi Babu B.S, the learned counsel appearing for the petitioner and Smt. Seetha S, the learned Senior Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate that the petitioner has committed the above offences. The Investigating Officer has deliberately implanted the petitioner as the accused in the crime. The contraband involved in the case is Methamphetamine and not MDMA. Therefore, the contraband involved in the case is of an intermediate quantity. Even though the petitioner has been in 2024:KER:60470 BAIL APPL.NO.6292/2024 4 judicial custody for the last nearly 90 days, the investigation in the case is not complete, and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail as contemplated under Section 167(2) of the Code and Section 36A(4) of the Act. Hence, the bail application may be allowed.
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. Nonetheless, she did not dispute the fact that the contraband is now found to be Methamphetamine, as per the chemical analysis report and, therefore, the contraband is of an intermediate quantity. The investigation in the case is not complete, and the final report has not been laid.
6. The prosecution allegation is that, the accused 2024:KER:60470 BAIL APPL.NO.6292/2024 5 were found in conscious possession of 48.59 grams of MDMA, which is of a commercial quantity. Now as per the chemical analysis report, it has turned out that the contraband is methamphetamine and not MDMA. Therefore, the contraband is of an intermediate quantity. The petitioner was arrested and remanded to judicial custody on 10.05.2024, which is nearly 90 days. The offences punishable against the petitioner are all for a period of less than 10 years. The investigation in the case is not complete and the final report has not been laid. Hence, the petitioner is entitled to be enlarged on statutory bail.
7. It is apposite to extract Section 36A(4) of the Act, which reads as follows:
" (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 2024:KER:60470 BAIL APPL.NO.6292/2024 6 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days"
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
8. Similarly, Subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:-
167. 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 57, and there are grounds for believing that the accusation or information is wellfounded, 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 2024:KER:60470 BAIL APPL.NO.6292/2024 7 the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed 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, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; 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:
Provided that-- 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, 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 paragraph 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 not less than ten years;
(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 2024:KER:60470 BAIL APPL.NO.6292/2024 8 this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) 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 medium of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
[Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.--If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under 2024:KER:60470 BAIL APPL.NO.6292/2024 9 eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]
9. Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable Supreme Court in Sanjay Dutt v.State through C.B.I., Bombay [(1994) 5 SCC 410] has observed as follows:-
"53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in 2024:KER:60470 BAIL APPL.NO.6292/2024 10 filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage."
10. A three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], reiterated the legal proposition in Sanjay Dutt v. State through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus:
"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."
(emphasis added)
11. In the instant case, the petitioner has been in 2024:KER:60470 BAIL APPL.NO.6292/2024 11 judicial custody for the last 90 days and the Investigating Officer has not laid the final report. Hence, I am convinced that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Sections 36A(4) of the Act and 167(2) of the Code. Hence, I allow the bail application, but subject to stringent conditions:
In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh 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 as and when required;
(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person 2024:KER:60470 BAIL APPL.NO.6292/2024 12 acquainted with the facts of the case so as to dissuade them 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) 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.
(v) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.
(vi) Needless to mention, it would be well within the powers of the Investigating Officer to investigate 2024:KER:60470 BAIL APPL.NO.6292/2024 13 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 JJ 2024:KER:60470 BAIL APPL.NO.6292/2024 14 APPENDIX OF BAIL APPL. 6292/2024 PETITIONER'S ANNEXURES Annexure A1 THE TRUE COPY OF FIR Annexure A2 THE TRUE COPIES OF BANK PAPERS Annexure A3 THE TRUE COPY OF FORENSIC LAB REPORT Annexure A4 THE TRUE COPY OF BAIL APPLICATION DISMISSED ORDER //TRUE COPY// PA TO JUDGE