Allowed

Satheesh Kumar v. State Rep.by

Madras HC3 Apr 2024CRL OP/7807/2024

Case brief

AI extract

What is this about?

Petitioner, sixth accused arrested for transporting 120 kg ganja under the NDPS Act, sought bail citing prolonged incarceration and delay in trial despite earlier directions to complete it within six months. Relying on Mohd Muslim, the court granted bail subject to conditions including a Rs.50,000 deposit and daily appearance.

What did the court decide?

Bail granted on bond of Rs.10,000 with two sureties, subject to Rs.50,000 deposit to Arignar Anna Memorial Cancer Hospital and daily appearance before trial court.

Satheesh Kumar Vs State Rep.by — Narcotics (NDPS) | Madras HC (2024)

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Crl.O.P.No.7807 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 03.04.2024

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CORAM:

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

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Crl.O.P.No.7807 of 2024

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S.Satheeshkumar ...Petitioner

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-Vs -

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State Represented by The Inspector of Police, M-4, Redhills Police Station, Chennai. Crime No.1402 of 2021 ... Respondent

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Prayer: Criminal Original Petition filed under Section 439 of Cr.P.C., prayed to enlarge the petitioner on bail in C.C.No.41 of 2022 pending on the file of the II Additional Special Court for the trial of NDPS Act Cases, Chennai.

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For Petitioner : Ms.Vijayalakshmi Raju For Respondent : Mr.C.R.Pratap Government Advocate (Crl. Side)

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ORDER

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The petitioner, who was arrested and remanded to judicial

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custody on 23.07.2021, for the offence under Sections 8(c) r/w 20(b)(ii), 20(c), 25 and 29(1) of the Narcotic Drugs & Psychotropic Substances

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Crl.O.P.No.7807 of 2024

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Act, 1985 (hereinafter referred to as “NDPS Act”) in crime No.1402 of 2021 on the file of the respondent police, seeks bail.

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The case of the prosecution is that the Sub-Inspector of

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Police attached to the respondent police station was on patrol duty on 23.07.2021 along with her party at M.A. Nagar check post from 07.00a.m. and at about 09.30 a.m. at TATA Indica car bearing registration No.TN-67-AW-4950 hurriedly attempted to cross the checkpost without stopping the vehicle check-up and thereupon the said vehicle was intercepted by the Sub Inspector of Police and the petitioner and another person were found in the car and they were enquired about their identity and address particulars and the car was also searched and three white colour sacks smelling Ganja odour were found.

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The Sub-Inspector of Police thereupon arranged to bring apparatuses required for seizure proceedings and offered and served a Notice in terms of Section 50 of the NDPS Act to the petitioner and other person. Thereafter, the Sub-Inspector of Police has conducted a search and weighed the three sacks and found that each one containing 40 kgs

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of Ganja and also drawn samples from those sacks and thereafter the https://www.mhc.tn.gov.in/judis Page 2 of 10

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Crl.O.P.No.7807 of 2024

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Sub-Inspector of Police seized contraband under the cover of Mahazar along with the car and later interrogated the 7^th accused and arrested the 7^th accused and the petitioner herein and took to respondent police station and handed over the contraband and the accused along with the Special Report under section 57 of NDP Act to the respondent. Having received the same, the respondent had registered a case in Crime No. 1402 of 2021 for the offences punishable under Sections 8(c) r/w 20(b)(ii), 20(c), 25 and 29(1) of the NDPS Act.

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The learned counsel for the petitioner would submit that the petitioner was arrested and remanded to judicial custody on 23.07.2021. There are totally seven accused in which the petitioner arrayed as sixth accused. He further submitted that the petitioner filed several petitions before this Court for seeking bail. Though, this Court gave several directions to the trial Court in order to complete the trial within a period of three months and six months respectively. But, the trial has not been commenced so far. He further submitted that the petitioner is incarcerated from 23.07.2021 and the co-accused has already been granted bail by this Court in Crl.O.P.No.3034 of 2024 by an order dated 28.02.2024. Further the petitioner is ready and willing to deposit the https://www.mhc.tn.gov.in/judis Page 3 of 10

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amount as directed by this Court and hence he prays for grant of bail to the petitioner.

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The learned Government Advocate (Crl.Side) appearing for

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the respondent submitted that the petitioner along with other accused were in conscious possession of 120 kgs of Ganja. He further submitted that the trial has been commenced and the matter is posted for recording evidence on 04.04.2024. If the petitioner released on bail, he would tamper the witnesses and hamper the evidence. Hence, he vehemently opposed to grant bail to the petitioner.

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It is seen that there are totally seven accused in which the

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petitioner is arrayed as sixth accused. The petitioner was found in possession of three bags of Ganja weighing about 120 Kgs. It is a commercial quantity. Further, though this Court already directed the trial Court to complete the trial within a period of six months by order dated 06.02.2023, but the trial Court could not be able to complete and the trial has not been commenced so far.

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In this regard, it is relevant to extract the judgement of the

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Hon'ble Supreme Court of India reported in 2023 Live law (SC) 260 in the case of Mohd Muslim @ Hussain Vs State (NCT of Delhi), wherein the Hon'ble Supreme Court of India held as follows:-

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''18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is ''not guilty of such offence'' and that he is not likely to commit any offence while on bail. What is meant by ''not guilty'' when all the evidence is not before the court? It can only be a prima facie determination. That places the Court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Cr.P.C) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further, the classification of offences under Special Acts (NDPS Act, etc.,) which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions

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have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape etc.,. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This Court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.

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19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the Court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those

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enacted under Section 37 of the NDPS Act.

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20. The standard to be considered therefore, is one, where the Court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgements of this Court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India vs Rattan Malik 19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.''

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Thus, it is clear that grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too.

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Considering the above facts and circumstances of the case

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and the submissions made by the learned counsels and also taking note

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of the fact that the petitioner has come forward to deposit an amount of

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Rs.50,000/- (Rupees Fifty Thousand only) by way of Demand Draft to the Arignar Anna Memorial Cancer Hospital & Research Institute, Kancheepuram and also taking note of the fact that the petitioner is in judicial custody from 23.07.2021, this Court is inclined to grant bail to the petitioner with certain conditions:

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Accordingly, the petitioner shall deposit a sum of

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Rs.50,000/- (Rupees Fifty Thousand only) by way of Demand Draft to the Arignar Anna Memorial Cancer Hospital & Research Institute, Kancheepuram and on such deposit, 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, Special Court for Exclusive Trial of Cases under NDPS Act, Chennai, and on further conditions that:

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[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.

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[b] the petitioner shall deposit a sum of Rs.50,000/- (Rupees Fiffty Thousand only) by way of Demand Draft to the Arignar Anna Memorail Caner Hospital and Research Institute, Kancheepuram, and that the receipt of such payment shall be produced before the concerned Magistrate at the time of executing the bond;

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[c] the petitioner shall appear before the trial court daily at 10.30 a.m and 5.30p.m. until further orders.

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

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[e] On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioners 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].

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[f] If the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC. 28.02.2024

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03.04.2024

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Index : Yes/No Speaking/Non Speaking order Neutral Citation : Yes/No

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rts

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