IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 Bail Appl..No. 872 of 2010 C.R.NO.8 OF 2009 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SQUAD, KOTTAYAM. PETITIONER/4TH ACCUSED ------------------------------------------ BINEESH KUMAR, S/O.MANI, AGED 24 YEARS, VATTAKASHTHAYIL HOUSE, IRUMPUPALAM, VALARA KARA, MANNAMKANDAM VILLAGE. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING CIRCLE INSPECTOR OF EXCISE, EXCISE ENFORCEMENT AND ANTI NARCOTIC SQUAD, KOTTAYAM IN CR NO.8/2009. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 872 OF 2010 ------------------------------------------------------ Dated this the 22nd day of February, 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.4 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 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 B.A. NO. 872 OF 2010 :: 2 :: 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 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. B.A. NO. 872 OF 2010 :: 3 :: 6. 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, if any, before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within a period of one week. If the petitioner does not have 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; 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 ahz/