1. This is the fourth application for regular bail filed by the petitioner, who is the 2nd accused in Crime No.905/2022, of Angamali Police Station, Ernakulam.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail.

3. I have perused the relevant documents.

4. The prosecution case in brief is that, accused Nos.1 to 4 hatched conspiracy to possess and sell MDMA; and in continuation of the said conspiracy, they jointly collected 198.36 grams of MDMA and stored the same in Bluetooth speakers. Thereafter, the said MDMA was forwarded through Blue Dart DHL Courier service in Mumbai and received the same in Blue Dart DHL Office in Angamaly and the same was found in possession of the 1st accused when he had kept the same in a TATA Nano car, bearing Registration No.KL04-AH-4823, near Malabar Gold Jewellery, Angamaly. Thereafter, the 1st accused was arrested and crime alleging commission of offences punishable under Sections 22(c), 22(b), 20(b)(ii)(A), 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter), was registered.

5. The learned counsel for the petitioner canvassed regular bail to the petitioner, who has been in custody from 05.10.2022 on the submission that trial not so far completed. Therefore, the petitioner, who has been in custody for about 2 years, is liable to be released on bail.

6. Whereas, the learned Public Prosecutor strongly opposed grant of bail and pointed out involvement of the petitioner in this crime with materials to connect him in commission of this crime. It is submitted that accused Nos.1 and 2 jointly stayed at the lodge in Andheri, Mumbai from 04.09.2022 to 15.09.2022 and they had given I.D proof of one Alif Muhammed Saifudheen and the same was seized from the house of the 2nd accused during investigation. It is also argued that the 2nd and 3rd accused invested money in the account of the 1st accused and the bank details are also available in this regard. It is pointed out that there are documents to connect the 2nd and 3rd accused also in this regard, since they had entrusted money with the 1st accused to purchase the contraband seized from the possession of the 1st accused. According to the learned Public Prosecutor, all accused in this case, are in custody and therefore, trial, involving huge quantity of contraband may be expedited.

7. The second bail application filed by the petitioner was dismissed for the reasons stated in paragraphs 6 and 7 as under, with direction to the trial court to expedite the trial.

“6. In this matter, a report from the learned Special Judge, North Paravur, was called for. It is reported by the learned Special Judge that all the accused in this case have been in custody and the trial could be expedited. The relevant portion of the report is as under:

“S.C.No.184/2023 was posted to 12/12/2023 for framing of charges. As per reference No.3 above, this court had already sent a report on time required to dispose the case. Considering the report of this court, the Hon'ble High Court, in the bail application No.9141/2023 preferred by 3rd accused vide order dated 13/11/2023, directed this court to dispose the case within 6 months from the date of receipt of copy of the order. It is also submitted that all the accused in this case are in custody. This court is ready to dispose the case as directed in reference No.2, by the Hon'ble High Court.”

7. This Court laid down certain parameters to dilute the rider under Section 37 of the NDPS Act, involving commercial quantity. In the decision in Fasil v. State of Kerala, reported in [2023 (3) KHC 212], this Court held as under:

“Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”

The ratio in the said decision would apply only cases where trial could not be materialized within a period of 6 months.

In the case at hand, the learned Special Judge readily agreed to dispose of the case, within a period of 6 months in view of the direction issued by this Court when bail application at the instance of the 3rd accused was considered. Therefore, the ratio in Fasil’s case (supra) could not be applied in the facts of this case. Accordingly, this bail application stands dismissed, directing the learned Special Judge, to dispose of S.C.No.184/2023 on the files of the Sessions Court (Additional District and Sessions Court – II), North Paravur, within a period of 6 months in obedience to the earlier order. “

8. Now as per the report sent by the learned Special Judge on 17.08.2024, FSL report was received on 29.05.2024 and request is made to the RFSL to get sufficient copies of the report. It appears that the procedure adopted by the learned Special Judge is to delay the trial, even after getting the FSL report as early as on 29.05.2024 and now the learned Special Judge seeks four months’ time to dispose of the case.

9. On going through the report of the learned Special Judge, request for further four months’ time to dispose of the case is not at all convincing, even after receipt of the FSL report. In this case, earlier bail applications filed by the petitioner were dismissed holding that the rider under Section 37 of the NDPS Act could not be diluted in a case involving 198.36 gram of MDMA. Since there is no change in circumstances to dilute Section 37 of the NDPS Act, this application also must fail.

10. Noting displeasure with regard to the report filed by the learned Special Judge seeking four months’ time further to dispose of the case even after receipt of FLS report on 29.05.2024, the learned Special Judge is directed to start the trial within a period of one months from the date of receipt of a copy of this order and dispose of the case thereafter within a period of two months and report compliance.

This petition is dismissed accordingly.

Registry is directed to forward a copy of this order to the jurisdictional court for information and compliance.