SAHARATH V.P. Vs. STATE OF KERALA

JUDGEMENT

(1.) Successive application for regular bail under Section 439 Cr.P.C.

(2.) The applicant is the accused in Crime No.521/2019 of Panniyankara Police station, Kozhikkode for having allegedly committed an offence punishable under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). The investigation is over and the final report has already been filed and taken on file of the Court of the Special Judge for NDPS case, Vadakara as S.C. 41/2020.

(3.) The prosecution case, in brief, is that on 07/12/2019 at about 11:40 AM, the Police officers apprehended the BA No.1463 of 2021 accused near the goods shed yard of the Kallai Railway Station under suspicious circumstances, and on search he was found to be in possession of 2830 capsules weighing 1750 grams of Spasmo Proxyvon containing Tramadol, a commercial quantity of a psychotropic substance, violating the provisions of the NDPS Act. He was remanded consequent to his arrest and continues in judicial custody. The applicant had filed an application for statutory bail under Section 167 (2) Cr.P.C read with Section 36A(4) of the NDPS Act as Crl. M.P No.275/2020 before the Designated Court and the same was dismissed vide Annexure-2 Order. The final report in an NDPS case has to be filed within the statutory period of 180 days. There is no dispute that the final report in the instant case was filed on BA No.1463 of 2021 16/03/2020 as evident from Annexure-1. The applicant would contend that the final report which was filed on time by the investigating officer, was returned for the reason that the copy of the drug disposal committee was not attached. subsequently, it was filed only after the expiry of the statutory period and hence the applicant ought to have been given the benefit of mandatory bail under Section 167 (2) Cr.P.C., read with Section 36A(4) of the NDPS Act. The applicant states that the Apex Court has in Achpal@ Ramswaroop and Ano v. State of Rajasthan, [AIR 2018 Sc 4647:2018 KHC 6714] held that when a charge filed before the court within the statutory time under Section 167(2) CrP.C is returned due to technical defects, it cannot be said charge sheet is filed, and that the accused is BA No.1463 of 2021 entitled for statutory bail after expiry of ninety days if no charge sheet is filed within that period. The applicant also relies on the decisions in Udhay Mohanlal Acharya v. State of Maharashtra [2001 (5) SCC 453] and M. Raveendran v. The Intelligence Officer, Directorate of Revenue Intelligence [Crl.Appeal No. 699 of 2020] to submit that the accused may be released on bail.