Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 BAIL APPL. NO. 361 OF 2022 AGAINST THE ORDER IN CRMC 2847/2021 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM
PETITIONER: ERSHAD AGED 22 YEARS S/O.IBRABIM, ASMA MANZIL, PAVOM P.O., CHERUKUNNU, KANNUR DISTRICT. BY ADVS. DEEPAK RAJ C.P.ROOPA AKBAR.K.A RESPONDENT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. BY ADV C.K.SURESH (SR.PP)ADDL.DIRECTOR GENERAL OF PROSECUTION C.K. SURESH (SR.PP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.02.2022, ALONG WITH Bail Appl..863/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 BAIL APPL. NO. 863 OF 2022 PETITIONER: SHABEER AGED 39 YEARS VARAMBU MURIYIL CHAPPAYIL VEEDU, PARIPPAI KARA, CHENGALAYIL VILLAGE AND POST OFFICE KANNUR, PIN - 670631 BY ADV V.SETHUNATH RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR KERALA HIGH COURT,ERNAKULAM ERNAKULAM, PIN - 682031 2 ASST POLICE COMMISSIONER, THRIKKAKKARA OFFICE OF THE ASST. POLICE COMMISSIONER,THRIKKARA ,KAKKANNAD ERNAKULAM, PIN - 682030 3 THE STATION HOUSE OFFICER, THRIKKAKARA THRIKKAKKARA POLICE STATION ,KAKKANAD ERNAKULAM, PIN - 682030 BY ADV C.K.SURESH (SR.PP)ADDL.DIRECTOR GENERAL OF PROSECUTION THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.02.2022, ALONG WITH Bail Appl..361/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Petitioners in these bail applications are accused Nos. 1 and 3 in Crime No. 1576/2021 of Thrikkakara Police Station, Ernakulam district alleging commission of offences under Sections 8, 22(c), 29, 20(b)(ii a) of the Narcotics Drugs and Psychotropic Substances Act, 1985 ( in short 'the NDPS Act').
2. The allegation against the petitioners is that, they along
with other accused were found in possession of 26.91 grams of MDMA, 6.62 grams of ecstasy pills and 7.54 grams of ganja from a lodge at Vazhakkala where the petitioners were staying along with the other accused.
3. Learned counsel appearing for the petitioners in these cases would contend that the petitioners are absolutely innocent in
the matter. The counsel appearing for the petitioner in B.A.No.361/2022 (first accused) would contend that the first accused has absolutely no connection with the other accused in the case. It is submitted that the first accused had come to Ernakulam in connection with a training class and had stayed with some of the other accused. It is submitted that no quantity of drugs were recovered from the possession of the petitioner. It is submitted
that the allegations to the contrary are completely false. It is submitted that the first accused has no criminal antecedents and he is a B.Com student in a college at Mangalore. Learned counsel appearing for the petitioner in B.A. No.863/2022 (third accused) would submit that the entire procedure followed by the Police is flawed. In particular, it is pointed out that though the incident is stated to have come to the notice of the prosecuting agency in the wee hours of 23.12.2021 and despite the fact that the records show that the seizure was in the early hours of 23.12.2021, the FIR in the case was registered only late in the afternoon of the same day. It is submitted that this is a serious flow which erodes the basis of the prosecution case. He refers to certain provisions of Police Manual to point out that the FIR has to be registered without any delay whatsoever. It also submitted that there is not even a GD entry in the station records to show anything regarding the information
received by the Police in the early hours of 23.12.2021. It is submitted that the petitioner is a driver of a taxi vehicle belonging to his mother and he had only accompanied the other accused from Mangalore to Cochin as a driver. It is submitted that he is being wrongly projected as the kingpin behind the transaction, only on account of the fact that the relatives of the petitioner/third accused had filed a petition for receiving back the vehicle which had been seized by the Police. It is submitted that there is defect in the procedure followed by the prosecution in as much as the gazetted officer who was stated to be present at the time of search is none other than a officer of the Police department (Circle Inspector of Police, Thrippunithura Hill Palace Police Station) which, according to the learned counsel, vitiates the procedure of search. Finally, it is submitted by the counsel appearing in both the cases that the drugs allegedly seized from each of the petitioners is not in commercial quantity and Section 37 of NDPS act is not applicable.
4. Learned Public Prosecutor vehemently opposes the
grant of bail. He submits that the investigating agency has collected records including call records would suggest that all the accused including the petitioners in these cases traveled together from Mangalore to Cochin after procuring the drugs from Bangalore. It is submitted that the petitioners are involved in supply of drugs to persons requiring the same and for this purpose, they would pack the drugs in small quantities as per requirements of the customers. It is submitted that the petitioners and other accused used to follow a unique procedure for supply of drugs where they would keep the drugs at certain places and thereafter send the details of the same to the customers who would make payments over Google pay and other payment platforms. It is submitted that the third accused in the case (petitioner in B.A.No.863/2022) is the master brain behind the entire transaction. It is submitted that since Section 29 of the NDPS act has been invoked, the question of considering that the quantity recovered from each of the accused including the petitioners herein was less than commercial quantity does not arise, as the total quantity has to be taken into consideration for the propose of determining whether the provisions of Section 37 apply or not. It is submitted that once it is found that the provisions of Section 37 of NDPS act are attracted, this Court is not empowered to grant bail to the accused in these cases unless this Court were to find that there are reasonable grounds to believe that the accused was not guilty of the offences alleged against them and also that they will not engage in similar activity if they are released on bail. It is submitted that there are no reasonable grounds to believe that the accused are not guilty of the offences alleged against them as each every procedure in the NDPS act has been followed by the prosecution in this case. It is submitted that the alleged delay in registering the FIR is only on account of the procedures required to be followed in NDPS case and the delay is not at all against any
provision in the Police Manual. Considering the fact and circumstances of the case, it is submitted that after search and seizure, the petitioners and other accused had to be subjected to medical examination including RTPCR test before recording their arrest and after all the procedure, the Police party reached the Station only in the afternoon of 23.12.2022 and immediately FIR
was registered. It is submitted that there is no merit in the contention raised by the learned counsel for the petitioner in B.A. No.863/2022 that the delay in registering the FIR is fatal in the case.
5. Having considered the submissions raised by the
learned counsel appearing for the petitioners in these cases and the learned Public Prosecutor, I am of the opinion that since Section 29 of the NDPS act has been invoked, the entire quantity of the drugs in question will have to be taken into consideration for the purpose of determining whether they were in commercial quantity or not. The total quantity of MDMA recovered for the petitioners is stated to be in excess of 25 grams which is certainly in commercial quantity. Therefore, unless the twin conditions in Section 37 are satisfied, the petitioners are not entitled to be released on bail. There is no material whatsoever to suggest that there are reasonable grounds to believe that the petitioners are not guilty of
the offences alleged against them. Secondly, even if there are materials to suggest so, there is nothing to suggest that the petitioners will not involve in similar offences, if released on bail. Therefore, these bail applications must fail, at this stage. Accordingly these bail applications will stand dismissed. It is submitted by the learned counsel for the petitioner in B.A.No.361/2022 that he is a student of B.Com Degree course and his examinations are coming up. I make it clear that notwithstanding the dismissal of the bail application, it is open to the petitioner to move this Court for permission for writing his examination by filing fresh bail application.
Sd/- GOPINATH P. JUDGE AJ APPENDIX OF BAIL APPL. 361/2022 PETITIONER ANNEXURES AnnexureI A TRUE COPY OF THE FIRST INFORMATION REPROT IN CRIME NO.1576/2021 OF THRIKKAKARA POLICE STATION, ERNAKULAM DISTRICT Annexure II A TRUE COPY OF THE RECEIPT DATED 14.09.2020 ISSUED BY THE SHREE DEVI COLLEGE, MANGALORE Annexure III A TRUE COPY OF THE APPLICATION DATED 04.01.2022 SUBMITTED BY THE INVESTIGATING OFFICER BEFORE THE JURISDICTIONAL COURT Annexure IV FREE COPY OF THE ORDER DATED 10.01.2022 IN
CRL.M.C.NO.2847/2021 PASSED BY THE HON'BLE SESSIONS COURT, ERNAKULAM APPENDIX OF BAIL APPL. 863/2022
PETITIONER ANNEXURES Annexure-A1 THE TRUE COPY OF THE FIR IN CRIME NO. Annexure-A2 THE TRUE COPY OF THE SEARCH LIST IN CRIME NO. 1576/2021 OF THRIKKAKKARA POLICE STATION Annexure-A3 THE TRUE COPY OF THE REMAND REPORT IN CRIME NO. 1576/2021 OF THRIKKAKKARA POLICE STATION Annexure-A4 THE TRUE COPY OF THE CUSTODY APPLICATION IN CRIME NO. 1576/2021 OF THRIKKAKKARA POLICE STATION Annexure-A5 THE TRUE COPY OF THE ORDER OF THE SESSIONS COURT, ERNAKULAM IN CR.M.C NO. 85/ 2022 DATED 17-01-2022