Ashwin Thomas vs Central

G.K.Ilanthiraiyan, J

The petitioner, who was arrested and remanded to judicial custody on 27.04.2021 at the hands of the respondent for the offences punishable under Sections 8(c) r/w 22(c), 23 28 and 29 of NDPS Act, in C.C.No.299 of 2022 on the file of the respondent, seeks bail.

The case of the prosecution is that when the respondent Police and their team went on secret search, they found that the petitioner along with other accused were found in possession of 990 grams of Amphetamine which was placed inside the cricket knee pads and hand gloves. Hence, the complaint.

The learned counsel for the petitioner submitted that the petitioner is arrayed as A-2 in this case. On the basis of the statement recorded one Jayamurugan and the crux of his statement is that on 24.04.2021 around at 1.30 p.m., the petitioner called over phone to the said Jayamurugan and requested him to come with his bike as he had some small work. On the said request, the said Jayamurugan met the petitioner herein and on his request, the said Jayamurugan had taken him to meet the petitioner's friend one Surendran, who is arrayed as A-1. He had handed over white colour transparent plastic bag contains two sets of thigh pads and one set of cricket hand gloves. Then all went to one sports shop to purchase another set of hand gloves. The said Jayamurugan waiting out side of the shop and the petitioner went to shop and purchased the hand gloves and thereafter, they went to DHL Courier Parcel Service to send the said parcel to Newzeeland. At the time of booking the parcel, the petitioner has produced his voter ID, since it was not legible and he requested the said Jayamurugan to give his address proof to send the Courier. Thereafter, he had given his Aadhar Card and thereafter, the Courier was booked to Newzeeland. Now, the prosecution has implicated the petitioner alone as accused and the said Jayamurugan was not implicated as accused. The parcel was handed over to them for sending Courier. He further submitted that the petitioner was not under concisions position of any contraband as alleged by the prosecution since the first accused was alone handed over to the thigh pads and cricket hand gloves to send Newzeeland by Courier. Further, A-3 handed over to the said thigh pad to the first accused and thereafter, he handed over to the petitioner only to send the courier. The petitioner was not in concisions position and he had no knowledge about the contraband, which was inserted in the thigh pads. Further, the petitioner was arrested and remanded to the judicial custody on 27.04.2021. Even till today, the trial has not commenced. The petitioner is incarceration of imprisonment from the date of his arrest i.e on 27.04.2021.

The respondent filed counter affidavit, it reveals that there are totally three accused. The petitioner has arrayed as A-2 in this case. From the statement recorded from DHL Express India Private Limited staff and it reveals that the petitioner approached him and enquired about for sending cricket thigh pads and cricket hand gloves to Newzeeland on 24.04.2021. Thereafter, he came with parcel containing thigh pads and cricket hand gloves in order to send the same to Newzeeland. At the time of booking the courier, the petitioner was asked to produce his address proof and he produced his voter ID, it was not legible one and as such, it was not accepted by the courier office. Thereafter, on his request, the said Jayamurugan produced his Aadhar Card and subsequently, shipment was booked to Newzeeland and the contraband inserted in the thigh pads. Therefore, the said Jayamurugan had no knowledge about the contraband.

Hence, the said Jayamurugan has not been implicated as accused. Whereas the petitioner was not in concisions position of the contraband along with the first accused. Further, the petitioner had categorically stated that the said Jayamurugan has nothing to do with alleged occurrence since he had no knowledge about the contraband.

The learned Special Public Prosecutor appearing for the respondent vehemently contended that the petitioner had knowledge about the contraband and as such, he already enquired with the courier office about charges to send the parcel to Newzeeland. Thereafter, he refused to produce any address proof to send the courier, but the said Jayamurugan given his Aadhar Card to send the courier. Further, A-3 absconded in this case and as such, the trial Court has only posted the matter for framing of charges.

On a perusal of the records, it reveals that there are totally three accused and the petitioner has arrayed as A-2. Even according to the case of the prosecution, the petitioner and his friend, viz., the said Jayamurugan went to courier office and booked the parcel containing two sets of thigh pads and two sets of hand gloves of cricket to Newzeeland.

On a further perusal of the statement of the said Jayamurugan and the petitioner herein, it reveals that on the request made by the first accused both were collected two sets of thigh pads and one set of hand gloves from the first accused. Thereafter, they went to sports shop and purchased one more set of hand gloves and went to the courier office in order to send the same to Newzeeland. In the courier office, the petitioner's voter ID to prove his residential address and the same was refused to receive by the courier office since it was not legible one. Therefore, the said Jayamurugan has produced his Aadhar Card and booked the parcel to Newzeeland. Now, the said Jayamurugan has not been implicated as accused on the statement recorded from the petitioner herein. Whereas, the petitioner has been implicated as A-2, as if he had also knowledge about the contraband which was stitched with the thigh pads.

The learned counsel for the petitioner has pointed out that the petitioner had absolutely no knowledge about the contraband and only for the reason that he has also playing cricket with A-1 and as such, he has not been implicated in this case. Even according to the case of the prosecution, the petitioner handed over the thigh pads and hand gloves to the first accused in order to send the same to Newzeeland, in turn the first accused received thigh pads from the third accused and handed over to the petitioner to send him through DHL Express India Private Limited to Newzeeland. Therefore, the petitioner had no knowledge about the thigh pads which containing alleged contraband. That apart, the petitioner also standing in the same footing of the said Jayamurugan to accompany along with the petitioner to the play ground, sports shop and courier office. Further, the trial has not been commenced till now and the matter is posted for framing of charges. However, the petitioner is incarceration from the date of his arrest, i.e. on 27.04.2021. Therefore, the petitioner has made out a prima facie case to satisfy twin conditions as contemplated under Section 37 of the NDPS Act, 1985.

In this regard, the High Court of Calcutta, citing the judgment of the Hon'ble Supreme Court India, has held in the case of Ashok Shil @ Arun Vs. State of West Bengal in CRM(NDPS) 248 of 2022 dated 10.03.2022 as follows:

In Legal Aid Committee (supra) Hon'ble Apex Court before formulating directions, observed as follows:

" 21.Of Course, Some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualized by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. What then is the remedy? The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned Counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court considers appropriate to impose. This suggestion commends to us. We were told by the learned Counsel for the State of Maharashtra that additional Special Courts have since been constituted but having regard to the large pendency of such cases in the State we are afraid this is not likely to make a significant dent in the huge pile of such cases. We, therefore, direct as under:........"

...... But, in view of the observation of the Hon'ble Apex Court, it is axiomatic that the right of an under trial guaranteed under Article 21 of the Constitution of India cannot be ignored where prosecution is the sole author of delay.

Considering the above facts and circumstances of the case and also period of incarceration undergone by the petitioner from the date of his arrest viz., on 27.04.2021 and also non commencement of trial, this Court is inclined to grant bail to the petitioner.

Accordingly, the petitioner shall donate a sum of Rs.50,000/-(Rupees Fifty Thousand only) to the credit of the RAY OF LIGHT FOUNDATION; A/c No : 50100078904233; IFSC code : HDFC0001864; No.10, Nageswara Road, Nungambakkam, Chennai, Tamil Nadu 600034; Ph No.8939065431 and on such donation, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two blood related sureties, each for a like sum to the satisfaction of the learned II Additional Special Judge (EC and NDPS) Act, Chennai and on further conditions that:

[a] the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Magistrate may obtain a copy of their Aadhar card or Bank pass Book to ensure their identity.

[b] the petitioner shall donate a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the credit of the RAY OF LIGHT FOUNDATION; A/c No : 50100078904233; IFSC code : HDFC0001864; No.10, Nageswara Road, Nungambakkam, Chennai, Tamil Nadu 600034; Ph No.8939065431.

[c] the petitioner shall report before the trial Court i.e. learned II Additional Special Judge (EC and NDPS) Act, Chennai daily at 10.30 a.m. and 05.30 p.m. until further orders.

[d] the petitioner shall not abscond either during investigation or trial.

[f] the petitioner shall not tamper with evidence or witness either during investigation or trial.

[g] On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].

[h] If the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC.