Anoop v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** ## **Bail Appl..No. 7504 of 2018** **CRIME NO.23/2018 OF THE EXCISE ENFORCEMENT AND ANTI-NARCOTIC CELL, ERNAKULAM** ## **PETITIONER/ACCUSED:** **ANOOP, AGED 32 YEARS, S/O. KAREEM, KARAYIKUDATHU (H), U.C.COLLEGE P.O., ALUVA, ERNAKULAM, PIN - 683 102.** **BY ADV. SRI.R.ROHITH** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031. 2 ADDL.R2 : THE DIRECTOR, REGIONAL CHEMICAL EXAMINER'S LAB, KAKKANAD. (ADDL.R2 IS IMPLEADED AS PER ORDER DATED 14/12/2018)** ## **OTHER PRESENT:** **SRI. AMJAD ALI SR. PP.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BA:7504/18 2 ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the 1[st] accused in Crime No.23 of 2018 of the Excise Enforcement and Anti Narcotics Cell, Ernakulam, registered on 11.5.2018 under Sections 22(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On 11.5.2018, Sri.K.K.Anilkumar, the Circle Inspector of the Excise Enforcement and Anti Narcotic Squad, was engaged in patrol duty, within the limits of Aluva Excise Range. On reaching Thadikkakadavu - farm road, one person was found standing on the eastern side of the road holding a plastic kit. On seeing the excise officials, he got perplexed and attempted to make good his escape in a bike which was parked nearby. He was intercepted by the excise officers and when he failed to give rational answers, the plastic bag in his possession was examined in the presence of witnesses. Several paper boxes were found inside and one of those boxes was opened by the detecting officer. It was found to contain narcotic substances in the form of ampules. He was informed of his rights to be searched in BA:7504/18 3 the presence of a Gazetted officer and as requested by him, the Excise Inspector of the Aluva Excise Range was requested to come to the spot. In the presence of the officer concerned, a search was conducted in accordance with law. From the box, a total number of 196 ampules of Buprenorphine, Diazepam and Promethazine were seized. The narcotic substances were sampled, sealed and seized in accordance with law and the accused was arrested. Later, the above crime was registered and the accused was produced before the court below on 12.5.2018 and he was remanded. He remains in custody. The applications for bail filed earlier were dismissed by this Court. After completion of investigation, final report was laid by Sri.B.Suresh, the Excise Circle Inspector of the Excise Enforcement and Anti Narcotics Special Squad, Ernakulam. 4. The learned counsel appearing for the applicant contended that the applicant is totally innocent. According to him, he was framed in the instant case by the detecting officer. It is further urged that a perusal of the final report would reveal that the formalities, the compliance of which are mandatory in nature, have been complied more by its breach than by its compliance. He would then refer to the final report and would contend that the Crime was detected on 11.05.2018 by the Circle Inspector of Excise. He is the officer who BA:7504/18 4 conducted the entire investigation and all that CW10, the Excise Circle Inspector, who laid the final report had done, was to complete the formalities and nothing else. According to the learned counsel, the Apex Court in **Mohanlal v. State of Punjab** [2018 (4) KHC 387] had held that a fair investigation is the very foundation of a fair trial and in no event shall the informant and the investigating officer be the same person. The learned counsel would further contend that the final report laid against the applicant cannot be sustained in view of the above gross anomaly. 5. Heard the learned Public Prosecutor, who refuted the submissions. He would contend that immediately after detection of the offence, the Circle Inspector of Aluva Excise Range was summoned and it was in his presence that the seizure was effected. It is further submitted that it cannot be said that any prejudice has been caused to the applicant herein. He would also highlight the fact that large number of ampules of narcotic substances were seized from the possession of the applicant and no leniency is warranted. It is further urged that unless the applicant satisfies the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is BA:7504/18 5 not likely to commit any offence while on bail, the applicant cannot be released on bail. 6. I have considered the submissions advanced and have perused the final report and the materials which are made available. The final report reveals that the detection was carried out by CW1, the Excise Circle Inspector, in the presence of CWs 2 and 4, who are his subordinate officers. CW3 is the Circle Inspector of Excise, who requested to witness the body search in compliance with Section 50 of the Act. CWs 5 and 6 are the independent witnesses cited to prove that they had witnessed the search and seizure. CW7 is the superior officer to whom, CW1 had dispatched the report under Section 57 of the Act. CW8 is the owner of the vehicle, which was found in the possession of the accused and CW9 is the Village Officer who prepared the plan. It is CW10, who after questioning the detecting officer and the owner of the bike, concluded the investigation and laid the charge before the jurisdictional court. 7. The final report would show that the statements of witnesses except that of CW 8 were recorded by CW 1 and he was the officer who submitted Section 57 report to the superior officer. He himself had conducted major part of the investigation, including the BA:7504/18 6 detection of the contraband, preparation of seizure, taking of samples, examination of seizure witnesses and the recording of the statement of the accused under Section 67 of the NDPS Act after effecting his arrest. The investigation in its true sense was conducted by the de facto complainant himself. All that was done by CW10 was recorded the statement of CW1 and 8 and submitted the final report. In **Mohan Lal** (supra) the Apex Court, in paragraph Nos.11 and 14 of the judgment had occasion to observe as follows: “11. A fair trial to an accused, a constitutional guarantee under Art.21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. BA:7504/18 7 ## xxxx xxxx xxxx ## xxxxx 14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.” 8. The Apex Court finally had held that a fair investigation, which is the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Holding so, it was held that the entire prosecution was vitiated because of the infraction of the Constitutional guarantee of a fair investigation. BA:7504/18 8 9. I am not impressed with the contention of the learned counsel appearing for the applicant that Section 37 would act as a deterrent in granting bail to the applicant. Of course, under Section 37 of the Act, no person accused of an offence punishable for offences involving commercial quantity can be released on bail only when the court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail. 10. In **Union of India (UOI)** v. **Shri Shiv Shanker Kesari** [(2007) 7 SCC 798], the Apex Court had occasion to consider the meaning and purport of the words ‘reasonable grounds’ occurring in Section 37 of the NDPS Act and it was held as follows: “7. The expression used in S.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. 8. The word 'reasonable' has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'. Stroud's Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according BA:7504/18 9 to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy. (See -- Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Another, AIR 1987 SC 2316 and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and Another [AIR 1989 SC 973). 9. It is often said 'an attempt to give a specific meaning to the word 'reasonable' is trying to count what is not number and measure what is not space'. The author of Words and Phrases' (Permanent Edition) has quoted from in re Nice & Schreiber, 123 F. 987, 988 to give a plausible meaning for the said word. He says, 'the expression 'reasonable' is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'. It is not meant to be expedient or convenient but certainly something more than that. 10. The word 'reasonable' signifies 'in accordance with reason'. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See -- Municipal Corporation of Greater Mumbai and Another v. Kamla Mills Ltd., 2003 KHC 1480 : 2003 (6) SCC 315 : AIR 2003 SC 2998). 11. The Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.” 11. As held by the Apex Court, the words ‘reasonable grounds’ connotes substantial probable causes for believing that the accused is BA:7504/18 10 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. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. 12. In the light of the pronouncement of the Apex Court in **Mohan Lal** (supra), prima facie, the investigation has to be held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. It would be an abdication of duty to reject the prayer of the applicant, who has been undergoing incarceration from 11.5.2018, and to keep him in custody merely for the sake of it. If on a minute scrutiny of the records, it is revealed that reasonable grounds exist to hold the applicant not guilty of the offence, in the light of pronouncement of law by the Apex Court, this Court cannot shirk from its responsibilities by postponing the consideration of the BA:7504/18 11 fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. 13. Now the question is whether this Court will be justified in holding that the applicant is not likely to commit any offence while on bail. The prosecution has no case that the applicant is a person with criminal antecedents or that he has involved in similar offence earlier. 14. For the limited purpose of considering this application, it is held that this Court is satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. I am of the view that the applicant can be enlarged on bail on stringent conditions. It is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and any opinion expressed above shall not be regarded as an opinion on merits during trial. 15. In the result, this application will stand allowed. The applicant shall be released on bail on his executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions: BA:7504/18 12 1). The applicant shall continue to appear before the Investigating Officer on all Saturdays between 9 a.m. and 10 a.m., for three months. 2). He shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. 3). He shall not commit any offence while he is on bail. 4). The applicant shall not leave India without the permission of the Court and if having passport, he shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** PS //TRUE COPY// P.S. TO JUDGE