Abin Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945** **BAIL APPL. NO. 980 OF 2024** **CRIME NO.1/2024 OF NARCOTICS CONTROL BUREAU, KOCHI, ERNAKULAM** ## **PETITIONER/2ND ACCUSED:** **ABIN BABU, AGED 25 YEARS S/O BABU, PUTHUKKAD HOUSE, PERUMBALAM P.O, CHERTHALA, ALAPPUZHA, PIN - 688570** **BY ADV ARJUN S.** ## **RESPONDENT/STATE:** **STATE OF KERALA, INTELLIGENCE OFFICER/ SUB INSPECTOR,NARCOTICS CONTROL BUREAU, COCHIN ZONAL UNIT, KENDRIYA BHAVAN, KAKKANAD, KOCHI, PIN - 682030** **BY ADV SRI.RAJAGOPALAN NAIR.K.R., CGC** ## **OTHER PRESENT:** **SPECIAL PROSECUTOR SRI RAJAGOPALAN NAIR K R** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.980 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in O.R. No.1/2024 of the Narcotics Control Bureau, Cochin Zonal Unit, registered against the accused (8 in number) for allegedly committing the offences punishable under Sections 8(c) r/w. S. 20(b)(ii)A, 22(c), 23(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 12.01.2024. 2. The essence of the prosecution case is that: on 09.01.2024 at around 11.00 hours, the Junior Intelligence Officer of the Narcotics Control Bureau, Cochin Zonal Unit (NCB) received reliable information that an ordinary postal parcel from Germany, containing LSD, addressed to the first accused had arrived at the Foreign Post Office, Kochi. Immediately the Intelligence Officer approached the Post Office and took controlled delivery of the article. When the **BAIL APPL.NO.980 OF 2024** **3** parcel was opened it contained 10 blots of LSD weighing 0.24 gms of the said contraband. In the interrogation of the first accused, it was revealed that the accused 2 and 3 are also involved in the crime. Consequently, the accused 2 and 3 were also arrested which led to the recovery of 200 blots of LSD from the third accused. The investigation is still in progress. Presently, there are 8 accused involved in the crime. Thus, the accused have committed the above offences. 3. Heard; Sri.Arjun S., the learned counsel appearing for the petitioner and Sri.Rajagopalan Nair K.R., the learned Special Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner strenuously argued that the petitioner has been falsely implicated in the crime. A reading of Annexure A1 Occurrence Report as well as the statement filed by the respondent before this Court would reveal that there is no material, other than the confession statements made by the accused, to link the petitioner with the crime. The confession statements are inadmissible in evidence in view of the law laid by the **BAIL APPL.NO.980 OF 2024** **4** Hon'ble Supreme Court in **Tofan Singh v. State of Tamil Nadu** [2020 (2) KLD 781] and reiterated in **Sharik Khan v. Narcotics Control Bureau** [2024 KHC OnLine 8125]. He submitted that the parcel was addressed to the first accused and the subsequent recovery of contraband was from the third accused. The petitioner does not have criminal antecedents. Therefore, the rigour under Section 37 of the Act does not apply. Moreover, the petitioner has been in judicial custody since 12.01.2024, the investigation in the case, insofar as the petitioner is concerned, is practically complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Special Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the NCB had taken controlled delivery of the parcel which is addressed to the first accused, with the permission of the Director General of the NCB. Consequently, the first accused was arrested on **BAIL APPL.NO.980 OF 2024** **5** 10.01.2024. In his voluntary statement, he testified that he had booked the parcel using cryptocurrency through the Dark Web from Germany for the second accused, who was working at the Farmshree Agromart. He has also disclosed that he had handed over 400 LSD blots to the second accused on 08.01.2024. Accordingly, the NCB officials proceeded to the workplace the accused 2 and 3 and interrogated them. The third accused has also given a statement that the second accused received 400 blots from the first accused. On the basis of the said statement, 200 blots of LSD was recovered from near the shop where accused 2 and 3 were working. The second accused also said that he had sold contraband to one Anandkrishna Tebby on 08.01.2024. Again, on the basis of the said statement, the investigating team recovered 28 LSD blots weighing 0.54 gms from the said person also. In the Whats App communication, it has been unveiled that the accused 1 to 3 have been indulging in the drug business. The screenshots taken from the mobile phones of the accused establish that **BAIL APPL.NO.980 OF 2024** **6** they have exchanged money between them. The accused have been indulging in drug trafficking by using clandestine methods and communications with drug suppliers and making payments with cryptocurrency. The investigation is only at a preliminary stage. The petitioner has not made out reasonable grounds to dilute the rigour under Section 37 of the Act. If the petitioner is enlarged on bail, it would torpedo the investigation as he may intimidate the witnesses and tamper with the evidence. Hence, the application be dismissed. 6. The prosecution allegation is that on the basis of the order placed by the second accused, the first accused had received a parcel at the Foreign Post Office, Kochi, containing 10 blots of LSD, weighing 0.24 gms. Consequent to the NCB officials taking controlled delivery of the parcel the detecting officer arrested the first accused, who confessed that on the previous day the second accused had received 400 blots of LSD. Based on the said information, the accused 2 and 3 were also arrested and their statements **BAIL APPL.NO.980 OF 2024** **7** were recorded. As per the statements, further recoveries of contraband were made from the third accused as well as one Anandkrishna Tebby. 7. The investigation has unveiled that there has been monetary transactions as well as the telephonic conversations through the Whats App between the accused. 8. The cardinal contention of the learned counsel for the petitioner is that other than the extrajudicial confessions made by the accused, there is no incriminating material to link him with the crime. Therefore, he is entitled to to the benefit of the judgment in **Tofan Singh'** s case (supra). 9. On the contrary, the prosecution states that there are incriminating materials including monetary transactions, telephonic communications and recoveries which undoubtedly establish the complicity of the petitioner. Moreover, the parcel has been recovered only on 09.01.2024 and the investigation is only at a nascent stage. 10. Taking into account the magnitude of the crime and also the time period that is granted under Section 36A of the **BAIL APPL.NO.980 OF 2024** **8** Act, providing 180 days to the Investigating Officer to complete the investigation, the rigour under Section 37 of the Act cannot be diluted based on the present materials. 11. Indisputably, the contraband that has been seized is of a commercial quantity. The accused 2 and 3 were working together and presently running their own business. 200 blots of LSD was seized from the premises very close to their workplace. Prima facie, the materials recovered, especially the Whats App communications and monetary transactions, lead to the petitioner's involvement in the crime. In addition to the above, the extrajudicial confessions corroborate with the incriminating material. Therefore, it cannot be said that the petitioner has been roped in solely on the basis of the extrajudicial confession. 12. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows:. - “37. Offences to be cognizable and non-bailable.—(1) - Notwithstanding anything contained in the Criminal **9** Procedure Code, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 13. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying **BAIL APPL.NO.980 OF 2024** **10** the twin conditions under Sec.37 of the Act. 14. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged”. ## 15. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the **BAIL APPL.NO.980 OF 2024** **11** NDPS Act have been prescribed”. 16. It is also well-settled that in addition to applying the rigour under Section 37 of the Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. 17. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. **BAIL APPL.NO.980 OF 2024** **12** 18. On an overall scrutiny of the factual matrix, the rival submissions made across the Bar, the materials placed on record and on comprehending the seriousness, gravity, and nature of the offences alleged against petitioner, the potential severity of the punishment that can be imposed on him, the commercial quantity of the contraband is involved in the case and the prima facie material that has been placed before this Court, and that the investigation in the case is only at a nascent stage, I am satisfied that there are no reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. The petitioner has not made out reasonable grounds to dilute the rigour under Section 37 of the Act. Therefore, I hold that the application is meritless and it is only to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS** **JUDGE** **shg**