Jinu Saji vs State Of Kerala

K.Haripal

This is an application filed under Section 439 of the Criminal Procedure Code seeking regular bail to the petitioner, who is the 1st accused in crime 1/2021 of Marayoor Excise Range. He was arrested along with the 2nd accused on 01.01.2021 for offence under Sections 22(c), 8(c), 20(b)(ii)(A), 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the Act. The precise allegation against the petitioner and the 2nd accused is that on 01.01.2021 at about 2.45 a.m., when the Excise officials were conducting night patrol duty, in front of Thenkasinathan temple near the bridge at Marayoor Kovilkadavu, they happened to come across the accused persons who were travelling on a motorcycle. The motorcycle was ridden by the petitioner/1st accused with the 2nd accused on the pillion seat. When signal was shown for stopping the vehicle, they slowed down the vehicle, but without stopping, accelerated the vehicle abruptly and tried to skip away. But they were forcibly stopped; when the bag carried by the petitioner/1st accused was opened and examined, it contained 2.97 grams of MDMA, 557 grams of LSD stamps and 100 grams of ganja. Thus, after preparing seizure mahazar in the presence of independent witnesses, the contrabands were seized, the accused were arrested following the procedural formalities and the crime was registered; they were remanded to judicial custody and since then are in custody. While so, on completion of investigation, the charge sheet was laid on 24.05.2021 and now they face allegations of the above stated offences.

An earlier application moved by the petitioner was dismissed by this Court by Annexure-B order dated 05.07.2021 on B.A.2503/2021. When that application was taken up, it was reported that they were already in custody for 180 days and submitted that a final report was not filed and they were entitled to get statutory bail. Thus enabling them to move the jurisdictional court for getting statutory bail, that application was dismissed. But later, it came out that even before the completion of 180 days, charge sheet was laid so that they were not entitled to get statutory bail.

Now the petitioner has moved again seeking regular bail. The learned counsel has raised two grounds in support of the application. According to him, the 2nd accused has already been granted bail by Annexure-A order by a co-ordinate bench of this Court. In that regard the Court had considered a complaint preferred by the father of the 2nd accused before the Vigilance wing of the Excise department; the Vigilance Officer had conducted an enquiry and found that the case was not detected as alleged by the prosecution. Therefore, that alone is sufficient to cast aspersions on the claim that the petitioner and another were arrested from Kovilkadavu; Secondly, the learned counsel invited my pointed attention to Annexure-C order of the learned Special Judge. According to him, such a petition was filed immediately after the arrest of the petitioner and in the order dated 25.02.2021 the contention of the petitioner has been reproduced by the learned Special Judge, where he had taken a specific plea that he was not arrested from Kovilkadavu and the enquiry conducted by the Vigilance Officer that has endorsed that version.

Annexure-A order of a co-ordinate Bench of this Court indicates that the 2nd accused has already been granted interim bail. The learned counsel submits that the period of that order stands extended by the Court. According to the learned counsel, the petitioner is entitled to get the very same treatment.

The learned Public Prosecutor has made available a copy of the report of the Vigilance Officer (Excise). I have gone through the report dated 16.07.2021. That enquiry was originated on a complaint given by the father of the 2nd accused. The specific allegation in the complaint was that his son was not arrested from Kovilkadavu as claimed by the prosecution but from a house at Pookkattupadi near Edappally. Detailed enquiry was conducted and the Enquiry Officer has endorsed the complaint. It is stated that the son of the complainant was arrested from a rented house near Edappally at about 3:30-4:00 p.m. on 31.12.2020. He had arrived such a finding after examining various witnesses and perusing CCTV footages. After considering various materials he has concluded that it was a decoy operation and the entire transactions and phone calls were suspicious.

In fact, the report of the Enquiry Officer dated 16.07.2021 gives a clear set back to the prosecution case. I do not want to dilate on this aspect. It is also not understood as to what is meant by a 'decoy operation'. Whatever it may be, it is stated that the entire transactions were suspicious and the Enquiry Officer had reasons to believe that the origin of the case was not as projected by the prosecution.

On the basis of the report the 2nd accused has been released on bail. Even though the learned Public Prosecutor has submitted that the petitioner is the real culprit that it was from him that the entire contrabands were seized, that he was riding the motorcycle and the contrabands were kept in the bag carried by him etc., so long as there is such a report from the Enquiry Officer, it is not appropriate to keep the petitioner in custody. Therefore he shall be released on bail on the following conditions: -

i) The petitioner shall execute 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 jurisdictional court; one of the sureties shall be a near relative;

ii) He  shall  not  try  to  contact  or  influence  the witnesses or tamper with evidence;

(iii) He shall not leave India without permission of the jurisdictional Court;

(iv) He shall not involve in any crime during the bail period;

(v) He shall appear before the trial court as and when required;

vi) He shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19 pandemic;

vii) If any of the above conditions are violated by the petitioner, the jurisdictional court will be at liberty to cancel the bail in accordance with law.

The bail application is allowed as above.