Asaraf Ali Samsudheen v. Narcotic Control Bureau, Kochi

B.A.7799/2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942** ## **Bail Appl..No.7799 OF 2020** **CRIME NO.6/2019 OF NARCOTICS CONTROL BUREAU, KOCHI , Ernakulam** ## **PETITIONER/S:** **ASARAF ALI SAMSUDHEEN AGED 34 YEARS SON OF ABDUL RAZAK SAMSUDHEEN, NO.230, ANGAPPAM STREET, 3RD FLOOR, MANNADI, CHENNAI, TAMIL NADU 600001** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/S:** **NARCOTIC CONTROL BUREAU COCHIN REPRESENTED BY ITS INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, SUB ZONE, COCHIN, THROUGH ITS SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031** **R1 BY ADV. SHRI.M.V.S.NAMPOOTHIRY** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17.12.20200, THE COURT ON 7.01.2021 PASSED THE FOLLOWING:** B.A.7799/2020 2 ## **ORDER** ## **Dated this the 7th day of January 2021** This is the third application filed by the petitioner, who is the 1[st] accused in O.R. No. 6 of 2019 of the Narcotic Control Bureau, Kochi (S.C. No. 453 of 2020 of Sessions Court, Ernakulam) seeking his release on bail. 2. The petitioner has been in custody since 06.10.2019 3. The prosecution allegations against the petitioner and the co-accused in brief are as follows: On 06.10.2019 at about 22.40 hours, the Intelligence Officer, Narcotics Control Bureau South Zone, Kochi ('NCB' for short) received an information from the CISF Control Room in Cochin International Airport that a passenger who was about to board Air Asia Airways to fly to Kolalambur was found in possession of some suspicious items akin to methamphetamine, a psychotropic substance coming under the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') concealed in his undergarment during routine security frisking. On receipt of the intimation, the NCB officials, reached the Airport and B.A.7799/2020 3 search was conducted and the contraband was seized from the petitioner. Two other passengers,i.e the 2[nd] and the 3[rd] accused, who boarded the aircraft to Doha were made to deboard the flight and from them also narcotic items were seized. Since, contraband was seized from the petitioner, he was apprehended along with the other two passengers by NCB and the case was registered for the offences punishable under Sections 8(c) read with Sections 22(C),23(C) 28 and 29 of the NDPS Act. 4. Heard Sri Babu S.Nair, the learned counsel for the petitioner and Sri.M.V.S.Nampoothiry, the learned Special Public Prosecutor. 5. The learned counsel for the petitioner has submitted that the petitioner is totally innocent of the allegations levelled against him and he is undergoing undeserved incarceration right from 6.10.2019. It is also pointed out by the learned counsel for the petitioner that the co-accused, that is accused Nos. 2 and 3, have already been released on bail. Hence, this petition. 6. The learned Special Public Prosecutor opposed the application contending that the petitioner is not entitled to be released on bail as the offences alleged against him are very serious in nature. It is also pointed B.A.7799/2020 4 out that his earlier applications were dismissed and the NCB had already taken steps to challenge the order by which bail had been granted to the other accused (A2 and A3). 7. The learned counsel appearing for the petitioner has staunchly submitted that, this court while deciding the earlier application (B.A. No. 1051 of 2020) has observed that whether all the safeguards provided under the Statute regarding arrest, search and seizure are observed scrupulously or not and whether the investigation was conducted in a perfunctory manner or not, are matters to be assessed and evaluated by the court at the time of trial. But, while granting bail to accused Nos. 2 and 3, another learned Judge in B.A. No. 35 of 2020 has observed that the search and seizure of narcotics from the possession of the accused created serious doubts and so they are entitled to be released on bail. So, relying on the decisions in **Mahadeolal Kanodia v. Administrator General of W.B.** (AIR 1960 SC 936) and **Official Liquidator v. Dayanand** (2008(4) KLT SN 62) it is submitted that a question of law which deserves to be referred to a Division Bench is involved and hence this bail application has to be referred to decide the correctness regarding conflicting decisions rendered by co-equal B.A.7799/2020 5 benches. But it is to be noted that the observations made while disposing of the bail applications are only for the limited purpose of deciding the bail application. More so very narrow considerations are made in bail applications subject to the parameters settled by a catena of decisions. So, absolutely no question of law is involved in the bail application to be referred to a Division Bench. 8. While the earlier application was considered by this Court, the investigation of the case was only in progress. Now it is revealed from the records that the investigation is over and the final report has been filed and the case has been taken on file and presently pending before the trial court as S.C. No. 453 of 2020. In fact, the case stands posted for hearing on charge before the trial court. 9. Certainly the offences under the NDPS Act are of extremely grave and serious nature. Stringent punishments are leviable for commission of offences and therefore strict compliance with the requirement of statutory provisions regarding arrest, search, seizure of the contraband, weighing, sealing etc are mandatory. The trial Judge has to analyze the statutory requirements meticulously and examine sequence of events occurred and B.A.7799/2020 6 presented by the prosecution. 10. As NDPS Act is a special enactment, it has to be borne in mind that the power to grant bail, to an accused arrested with commercial quantity of contraband articles and certain provisions of the Act are subject to the restrictions contained in Section 37 of the Act. Section 37 of the NDPS Act read as follows: “ **37. Offences to be cognizable and non-bailable** .- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.” B.A.7799/2020 7 Section 37 starts with a non obstante clause and certainly it should be given its due meaning as it is intended to restrict the powers to grant bail. This court on the earlier occasion while considering the bail application of the very same accused gave due importance to the non obstante clause and accepted the objections raised by learned Special Prosecutor and refused to enlarge the accused on bail. 11. But, it is pertinent to note that though bail has been granted to accused Nos. 2 and 3 in this case by an order dated 26.01.2020, by another learned Judge, it appears that so far NCB has not taken any steps to get it cancelled. Of-course though it is stated that the Head Quarters of NCB had already taken steps to challenge the bail order, so far the order granting bail to accused Nos. 2 and 3 has not been questioned before Supreme Court. So, in short, out of the three accused, only the first accused is undergoing incarceration. The other two accused arrested for commission of very same offence are enlarged on bail, but this petitioner is languishing in jail even now. 12. It is also pertinent to note that though the B.A.7799/2020 8 final report was filed on 30.3.2020, trial of the case has not been started so far. It appears that further delay will be caused in disposal of the case as the case stands posted to 27.01.2021 for hearing on charge. In the wake of the COVID -19 Pandemic most of the courts are functioning through video conferences as restrictions are imposed in trial of cases to avoid crowd in courts giving priority to the safety of general public. So possibility of further delay in disposal of this case can not be ruled out. 13. Thus considering the fact that the trial of the case is being delayed, though the final report has been filed as early as on 30.3.2020, and that the bail granted to accused Nos. 2 and 3 have not been cancelled so far at the instance of NCB, I think that the petitioner can also be released on bail subject to the following stringent conditions: (i) The petitioner shall be released on bail on his executing a bond for a sum of Rs.5,00,000/- (Rupees Five lakhs only) with two solvent sureties for the like sum each to the satisfaction of the learned Sessions Judge. One such surety shall be a close relative of the accused. The learned Sessions Judge shall ensure the identity of the sureties before granting bail. (ii) The petitioner shall co-operate with the trial of the case. B.A.7799/2020 9 (iii) The petitioner shall not leave India without the permission of the trial court and so, he shall surrender his Passport before the court below within ten days of his release. (iv) The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or attempt to tamper with the evidence. (v) The petitioner shall not commit any offence while on bail. In case of violation of any of the above conditions, the learned Sessions Judge is empowered to cancel the bail in accordance with the law. **Sd/-** ## **SHIRCY V.** **JUDGE** **sb**