IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 Bail Appl..No. 1401 of 2010() ---------------------------------- CRMP.52/2010 of SPL. COURT (NDPS ACT CASES), THODUPUZHA C.R.NO. 8 OF 2009 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SQUAD, KOTTAYAM .................... PETITIONER/IST ACCUSED : -------------------------------- JINEESH, S/O.VASUDEVAN, AGED 25 YEARS, THAZHATHEKUDI HOUSE, PADICUP-NEDUMPARA KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.S.JIJI RESPONDENT: --------------- THE CIRCLE INSPECTOR OF EXCISE, EXCISE ENFORCEMENT AND ANTI-NARCOTIC SPECIAL SQUAD, KOTTAYAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. ------------------------ B.A. No. 1401 of 2010 ------------------------------- Dated this the 11th day of March, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.1 in C.R.No.8 of 2009 of the Excise Enforcement and Anti Narcotic Squad, Kottayam. 2. The offences alleged against the petitioner are under Sections 21(c), 29 and 49 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecution case is that on 24.7.2009, accused Nos.1 to 3 were found transporting 1.47 kgs of Hashish oil in an autorickshaw driven by accused No.4. It was found that the Hashish oil was kept in the dashboard of the autorickshaw. Accused Nos.1 to 4 were arrested on 24.7.2009. The prosecution case is that accused Nos.5 and 6 had supplied the Hashish oil to the other accused. 4. The petitioner is in judicial custody since 24.7.2009. The learned counsel for the petitioner submitted that the petitioner is entitled to get default bail under the proviso to B.A. No. 1401/2010 2 Section 167(2) of the Code of Criminal Procedure, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the NDPS Act. The counsel also relied on the decision in Union of India v. Thamisharasi and others ((1995) 4 SCC 190). The learned counsel for the petitioner submitted that as per the order dated 22.2.2010 in B.A.No.872 of 2010, bail was granted to accused No.4. While granting bail to accused No.4, this Court held thus: “4. The petitioner is in judicial custody since 24.7.2009.The period of 180 days is over. The investigation is not complete and final report is not filed. It is submitted by the learned counsel for the petitioner that sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with the proviso to Section 167(2) of the Code of Criminal Procedure would entitle the petitioner to get default bail, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned counsel for the petitioner also relied on the decision in Union of India v. Thamisharasi and others ((1995) 4 SCC B.A. No. 1401/2010 3 190); wherein it was held that the limitations on granting of bail specified under Section 37(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are in addition to the limitations provided under Section 437 of the Code of Criminal Procedure and they do not exclude the applicability of the proviso to Section 167(2) of the Code of Criminal Procedure. 5. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the petitioner, the nature of the offence and the present stage of investigation and also taking note of the fact that the period of 180 days from the date of arrest of the petitioner is over, I am of the view that bail can be granted to the petitioner.” 5. The petitioner moved for bail before the learned Sessions Judge. The application filed by the petitioner was dismissed by the order dated 27.2.2010. It would appear that the order in B.A.No.872 of 2010 was brought to the notice of the learned Sessions Judge. However, the learned Sessions Judge brushed aside the contentions put forward by the petitioner and held thus: B.A. No. 1401/2010 4 “11. It is also contended on behalf of the petitioners that the 4th accused has already moved a bail application No.872/2010 before the Hon'ble High Court of Kerala and as per the order dated 22.2.2010 he was granted bail on certain conditions. It is vehemently argued that since the Hon'ble High Court granted bail to A4 the petitioners are also entitled to get equal treatment and hence they are entitled to bail. On this aspect, I am of the view that the Hon'ble High Court of Kerala while granting bail to A4 has not specifically held the question whether 37(ii) need not be looked into and ignoring 37(ii) bail has to be granted. As per para 5 of the order of Hon'ble High Court of Kerala in bail application No.872/2010 it can be seen that bail is granted taking note of the fact that 180 days is already over. Since application of Sec.37(ii) is not specifically excluded by the Hon'ble High Court of Kerala I am of the view that the spirit of the said order cannot be applied in these applications.” 6. As per the order dated 5.03.2010, in Bail Application No. 1337/2010, bail was granted to accused Nos. 2 and 3, after holding that the learned Sessions Judge committed a grave error in dismissing the applications. B.A. No. 1401/2010 5 7. In view of the fact that the petitioners 2 and 3 were released on bail as per the order dated 5.03.2010, I am of the view that the petitioner is also entitled to get bail for the same reasons. 8. The petitioner shall be released on bail on his executing bond for Rs.50,000/- with two solvent sureties for the like amount to the satisfaction of the Court of the Special Judge for NDPS Act cases, Thodupuzha, subject to the following conditions: a) The petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays and Thursdays, till the final report is filed or until further orders; b) The petitioner shall appear before the investigating officer for interrogation as and when required; c) The petitioner shall surrender his passport before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within a period of one week. If the petitioner does not hold an Indian Passport, an affidavit sworn to by him shall be filed before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within one week; d) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; B.A. No. 1401/2010 6 e) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; f) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T. SANKARAN, JUDGE ln