Antony v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 BAIL APPL. NO. 6686 OF 2022 ``` ``` NDPS CRIME NO.26/2021 OF Excise Enforcement and Anti Narcotic ``` ``` Special Squad, Ernakulam ``` ``` IN SC (NDPS) 565/2022 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM Bail Appl. 1834/2022 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/ACCUSED NO.3:`** ``` ANTONY AGED 59 YEARS, SON OF BAVACHAN, KOOTTUNGAL HOUSE, MULAVUKKAD VILLAGE, KANAYANNUR TALUK, MULAVUKKAD.P.O, ERNAKULAM., PIN – 682 504 ``` ``` BY ADVS. P.A.MARTIN ROY K.S.JAYASUDHA LIMJITH K.J. ATHUL ROY ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA THROUGH ASSISTANCE EXCISE COMMISSIONER, EXCISE ENFORCEMENT AND ANTI NARCOTICS SPECIAL SQUAD ERNAKULAM DISTRICT ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADVS. C K SURESH (SR PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.6686/2022 2 ## **ORDER** Petitioner is the 3[rd] accused in Crime No.26/2021 of Excise Enforcement And Anti Narcotics Special Squad Ernakulam District, which is now pending as SC(NDPS)No.565 of 2022 on the files of the First Additional District Court, Ernakulam. 2. This is the 3[rd] bail application filed by the petitioner. The first bail application filed by the petitioner was rejected by me by order dated 14-03-2022, holding that, even if, in the light of the contentions raised at that point of time, it could be held that one of the conditions in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as ‘NDPS Act’), which is that the Court must have reasonable grounds to believe that the accused is not guilty of the offence alleged against him is satisfied, the fact that the petitioner is accused in another NDPS case registered in the State of Tamil Nadu would indicate that the other condition which is that the Court must also be satisfied that if released on bail, the accused B.A.No.6686/2022 3 will not indulge in similar offences is not satisfied in the case of the petitioner. 3. The second bail application of the petitioner was also rejected by me by order dated 05-07-2022 (Annexure-2), finding that there are no change of circumstances entitling this Court to take a view different from the view taken, while disposing of the first bail application of the petitioner. 4. The learned counsel appearing for the petitioner would submit that accused Nos.1 and 2 in this case were arrested on 28-04-2021. It is submitted that a charge sheet was filed against accused Nos.1 and 2 on 12-01-2021. It is submitted that in the said charge sheet there is absolutely no whisper of the role of the petitioner. It is submitted that the petitioner was arrested only on 30-11-2021 following a further investigation conducted by the investigating agency. It is submitted that following the further investigation, a further charge sheet/ final report was filed in Court on 01-06-2022. It is submitted that there are no materials or documents produced by the prosecution along with the charge sheet to indicate that the petitioner was involved in B.A.No.6686/2022 4 any manner, in the case on hand. It is submitted that in such circumstances it must be held that there are grounds to believe that the petitioner is not guilty of the offence alleged against him. The learned counsel appearing for the petitioner also relies on the judgment of the Bombay High Court in **Abdul Mohammed Shaikh v. Union of India and Anr.,** (judgment in Crl.Bail Application No. 102/2020) to contend that in almost similar circumstances, the Bombay High Court came to the conclusion that the accused in that case was entitled to be released on bail. 5. Adv.C.K.Suresh, the learned Senior Public Prosecutor appearing for the State would vehemently oppose the grant of bail. It is submitted that accused Nos.1 and 2 were apprehended on 28-04-2021, while carrying about 140 Kg. Ganja, concealed in a mini Van carrying mangoes. It is submitted that even at the time of arrest a statement was recorded from the accused (while they were in Police custody) which indicated that the 1[st] accused was a driver/employee of the petitioner/3[rd] accused and he had gone to Andra Pradesh along with the 2[nd] accused, who is his B.A.No.6686/2022 5 friend to procure Ganja, from one Siva, for the petitioner in this case. It is submitted that the CDR records of accused Nos.1 and 2, which were procured by the investigating agency would show that the 1[st] accused was in constant touch with the petitioner and after procuring the Ganja from Andra Pradesh, the 1[st] accused had contacted the petitioner at least 164 times. It is submitted that the statements recorded from the wife of the petitioner and two other persons also indicate the involvement of the petitioner. It is submitted that though the petitioner was not present at the time of detection and though no quantity of contraband was recovered from the petitioner, the provisions of Section 29 of the NDPS Act are attracted and the petitioner is clearly guilty of the offence alleged against him. It is submitted that while the petitioner was in judicial custody, statement has been recorded by the prosecution from the petitioner, in which the petitioner has confessed and has admitted that the Ganja was procured by accused Nos.1 and 2 from a person named Siva in Andra Pradesh, for the purposes of the petitioner and on the instructions of the petitioner. It is B.A.No.6686/2022 6 submitted that as found by this Court in Annexure-1 order on B.A.No.1834/2022, even if, on the contentions raised by the learned counsel appearing for the petitioner, this Court were to conclude that there are reasonable grounds to believe that the petitioner is not guilty of the offences alleged against him, the fact that the petitioner is accused in another NDPS case in State of Tamil Nadu, that too involving commercial quantities of Ganja would indicate that the second condition of Section 37 of the NDPS Act, which is that the Court must also have grounds to believe that if granted bail, the petitioner will not indulge in the commission of similar offences cannot be said to be satisfied. It is submitted that it is settled law that the conditions in Section 37 of the NDPS Act are to be cumulatively satisfied and therefore the petitioner is clearly not entitled to bail. Having heard the learned counsel appearing for the petitioner and the learned Senior Public Prosecutor, I am of the view that the petitioner has not made out any case for grant of bail. The fact that no quantity of contraband was seized from the petitioner is no ground to hold that the B.A.No.6686/2022 7 provisions of Section 37 of the NDPS Act are not attracted in the case of the petitioner. This is settled in the light of the law laid down in the judgment of the Supreme Court in **Union of India through Narcotics Control Bureau, Lucknow v. Md.Nawaz Khan, 2021 KHC 6503.** It is to be noted that even at the time of interception of accused Nos.1 and 2, the role of the petitioner had been revealed and the other supporting materials such as statements recorded from the wife of the petitioner and two others and the confession statement of the petitioner while in judicial custody and also the CDR records of accused Nos.1 and 2, (from whose custody the contraband was recovered) clearly indicate the role of the petitioner. I am therefore of the view that there are no change of circumstances and the petitioner is not entitled to be released on bail. At this stage the learned counsel appearing for the petitioner submits that there may be a direction that the trial of S.C (NDPS) No.565/2022 may be expedited. Having regard to the said submission and considering the fact that the petitioner has been in custody from 30-11-2021, and final report in the case B.A.No.6686/2022 8 was filed on 01-06-2022, the First Additional District Court, Ernakulam is directed to expedite the trial in S.C.(NDPS) No.565/2022 to the extent possible having due regard to the pressure of work in that court. **Sd/GOPINATH P. JUDGE** ats. B.A.No.6686/2022 9 ## **`APPENDIX OF BAIL APPL. 6686/2022`** ## `PETITIONER ANNEXURES` - `Annexure 1 COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA, IN AS B.A. NO: 1834/2022 DATED 14/03/2022` - `Annexure 2 COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA, IN AS B.A. NO: 4083/2022 DATED 05/07/2022` - `Annexure 3 COPY OF THE ORDER OF THE HON'BLE SESSIONS COURT, ERNAKULAM IN CRL.M.P.NO:2043/2022 DATED 17/08/2022` - `Annexure4 THE COPY OF THE ORDER IN CRL.O.P.NO:2579/2022 OF THE HON'BLE HIGH COURT OF MADRAS DATED 04/02/2022`