High Court of KeralaSingle Judge2021-04-22Bail granted; applicant released on bail with s...

Amamchukwu Okake @ Innocent Smit v. State of Kerala

Case / Petition Number:B.A No. 1855 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: AS HOK MENON
Judgment Date: 2021-04-22
Court Decision / Holding: The application is allowed; the applicant is directed to be released on bail on execution of a bond for Rs. 2,00,000/-, with two local sureties for the same amount, subject to the following conditions: (1) surrender of passport before the jurisdictional court and not to release passport or travel abroad without permission; (2) not to involve in offences of a similar nature during the bail period; (3) not tamper with evidence or influence witnesses. Breach of any condition will entail cancellation of bail on a prosecution application.
Final Disposition: Bail granted; applicant released on bail with specified conditions.

Parties to the Case

Appellants / Petitioners

Amamchukwu Okake @ Innocent Smit

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Station House Officer, Elamakkara Police Station, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri R. Kishore (Kallumthazham)

Counsels for Respondents

• Sri Santosh Peter, Senior Public Prosecutor

Case Synopsis & Summary

This is a regular bail application under section 439 Cr.P.C. filed in the High Court of Kerala by Amamchukwu Okake, also known as Innocent Smit, a Nigerian national accused in Crime No. 64 of 2020 of Elamakkara Police Station, Ernakulam, for offences under the NDPS Act (Sections 22(c), 8(c), 27A, 28, 29 and 30) and related IPC sections (468, 419, 120B), as well as provisions of the Foreigners Act (Sections 14(a), 14(b)) and Passport Act (Sections 3(a), 3(3)) and Passport Rules. The prosecution contends that the applicant hatched a drug conspiracy and supplied MDMA to co-accused persons who were found in possession of 18 grams of the drug in an OYO Rooms, leading to his arrest. The Sessions Court had dismissed the bail application on the grounds of his antecedents and foreign nationality, suggesting risk of absconding. The High Court’s analysis centers on whether the prosecution’s case rests on confessional statements of co-accused, and on the admissibility and evidentiary value of those statements under the NDPS Act and the Evidence Act. Citing Tofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, the court held that confessions made to police officers under section 53 of the NDPS Act are police-made and inadmissible under section 25 of the Evidence Act, and that a statement under section 67 of the NDPS Act cannot be used as a confessional statement. The court also found the contraband’s classification not to be demonstrated as commercial under section 37. Ultimately, the court allowed bail, emphasizing lack of corroboration and that foreign nationality alone is not a ground to deny bail, subject to conditions. The order grants bail on a bond of Rs. 2,00,000 with two local sureties, mandates surrender of passport, and imposes standard conditions to prevent tampering with evidence or witnesses.

Provisions of Law Cited

Section 439 Cr.PCNDPS Act - Sections 22(c), 8(c), 27A, 28, 29, 30IPC - Sections 468, 419, 120BForeigners Act - Sections 14(a), 14(b)Passport Act - Sections 3(a), 3(3)Passport Rules - 3(a), 6(b), 6(c)NDPS Act - Section 37NDPS Act - Section 53Evidence Act - Section 25NDPS Act - Section 67

Legal Doctrines & Maxims

Tofan Singh v. State of Tamil Nadu (2020) SCC OnLine SC 882 — confessional statements made to police officers under NDPS Act are inadmissible under the Evidence Act (Section 25) and NDPS (Section 67) and cannot form the basis of conviction; used to assess admissibility of confessional material in support of bail decisions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends there is no material implicating him beyond the confessional statements of co-accused. No evidence incriminating him has been recovered, and the Chemical Analyst's report allegedly identifies the contraband as Methamphetamine rather than MDMA. He argues the gravity of the offense is diminished, potentially removing the application of Section 37 NDPS. The foreign national status alone should not disentitle him to bail; suitable conditions can ensure appearance and prevent flight.

Contentions of Respondents

The respondents rely on the prosecution’s case based on co-accused statements; emphasis on potential danger of absconding due to antecedents and foreign nationality; contends that the evidence against the applicant may rely on confessional material and that the court should be cautious in allowing bail where NDPS offences are involved.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Tofan Singh v. State of Tamil Nadu	2020 SCC OnLine SC 882	Positive	Cited as controlling authority to hold that confessional statements made to NDPS officers are inadmissible under the Evidence Act (Section 25) and cannot form the basis for conviction; supports the court’s reliance on non-confessional material and the bail decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** ## **THURSDAY, THE 22ND DAY OF APRIL 2021 / 2ND VAISAKHA, 1943 Bail Appl..No.1855 OF 2021** **CRIME NO.64/2020 OF ELAMAKKARA POLICE STATION , Ernakulam** ## **PETITIONER/S:** **AMAMCHUKWU OKAKE. @ INNOCENT SMIT AGED 37 YEARS ATHA STUDIO,71. 1ST MAIN, 2ND CROSS ROAD, BELEKAHAHALLI, BANGALORE-76 560076** **BY ADV. SRI.R.KISHORE (KALLUMTHAZHAM)** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031 2 STATION HOUSE OFFICER AGED 35 YEARS ELAMAKKARA POLICE STATION ELAMAKKARA, ERNAKULAM 682026** ## **OTHER PRESENT:** ## **SR. PP- SRI. SANTHOSH PETER** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16.03.2021, THE COURT ON 22.04.2021 PASSED THE FOLLOWING:** B.A No. 1855 of 2021 2 ## **O R D E R** **Dated this the 22nd day of April 2021** Application for regular bail under section 439 of Cr.PC. 2. The applicant is the first accused in Crime No. 64 of 2020 of Elamakkara Police Station, for having allegedly committed the offences punishable under Sections 22(c), 8(c) 27A, 28, 29 & 30 of the NDPS Act, Sections 468, 419 & 120 B of IPC, Section 14(a) & 14(b) of the Foreigners Act and Sections 3 (a) & 3(3) of the Passport Act and Rules 3(a), 6 (b) & 6(c) of the Passport Rules. 3. The prosecution case, in brief, is this: The applicant hatched a conspiracy to push drugs, along with the remaining 3 B.A No. 1855 of 2021 accused. On 02/03/2020 at about 6:00 PM., accused Nos.2 and 3 were together found to be in possession of 18 gms of MDMA from OYO Rooms in contravention of the NDPS Act and the Rules and were arrested. On interrogating them, they revealed the applicant as the source who supplied the drugs to them at Bangalore. The applicant had earlier been involved in a Narcotic case at Panaji in Goa. He is a Nigerian citizen, and was residing in India in violation of the provisions of the Foreigners Act as well as the Passport Act. He was arrested on 10/10/2020, and remanded. He continues to remain in custody. His application for bail was dismissed by the Sessions Court, and has therefore, approached this Court for B.A No. 1855 of 2021 4 indulgence. 4. The applicant contends that there is no material to implicate him in this Crime apart from the confession statements of the co-accused. Nothing incriminating was recovered from him. It is also stated that the contraband seized was identified by the Chemical Analyst to be Methamphetamine and not Methylene Dioxy Methamphetamine (MDMA) as considered by the detecting officer. Resultantly, the gravity of the offence allegedly committed by the accused is reduced, and the quantity of the contraband becomes intermediary and not commercial as was originally alleged. The rigour under Section 37 of the NDPS Act would therefore not B.A No. 1855 of 2021 5 be attracted. 5. Heard the learned counsel for the applicant and the Senior Public Prosecutor. The learned Sessions Judge had declined bail solely for the reason that the applicant is a person with antecedents and is a foreign national, and therefore, likely to abscond if released on bail. 6. After having considered the submissions made across the Bar and on going through the records available, I find that the prosecution case against the accused rests solely on the alleged confession statements of the co-accused. In Tofan Singh v. State of Tamilnadu [2020 SCC OnLine SC 882] the Supreme Court has held that officers who are invested with 6 B.A No. 1855 of 2021 powers under section 53 of the NDPS Act are “police officers” within the meaning of the Evidence Act, as a result of which any confession made to them would be barred under section 25 of the Evidence Act and cannot be taken into account in order to convict an accused under the NDPS Act. And that a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. There is no corroborative material relied upon by the prosecution to support those statements. Moreover, the contraband seized is not commercial so as to attract the embargo under section 37 of the NDPS Act. The fact that the applicant is a foreign national cannot be a reason B.A No. 1855 of 2021 7 to decline bail. Conditions to ensure his appearance can be imposed. 7. In the result, the application is allowed, and the applicant is directed to be released on bail on execution of a bond for Rs.2,00,000/- (Rupees two lakhs only) with two local sureties for the like amount each to the satisfaction of the jurisdictional court, and on following further conditions: 1. He shall surrender his passport before the jurisdictional court and shall not get it released or go abroad until permitted by the said court. 2. He shall not get involved in offences of similar nature during the bail period. B.A No. 1855 of 2021 8 3. He shall not tamper with evidence, intimidate or influence witnesses. Breach of the conditions shall entail in cancellation of bail on application filed by the prosecution before the jurisdictional court. **Sd/ASHOK MENON JUDGE** jg