B.A. No. 8113 of 2021 and B.A. No. 7592 of 2021

B.A.No.8113 and 7592 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 BAIL APPL. NO. 8113 OF 2021** **(CRIME NO.525 OF 2020 OF MALAPPURAM POLICE STATION, MALAPPURAM)** ## **PETITIONER/ACCUSED NO.10** MUHAMMED MUJEEB RAHMAN S/O.MUHAMMED BASHEER, KUNNEKKATT THENCHERRIKKUNNU HOUSE, ALPARAMBA, ANTHIYOORKUNNU.P.O, PULIKKAL, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673637. BY ADV R.RANJITH (MANJERI) ## **RESPONDENTS/STATE AND COMPLAINANT:** 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 THE SUB INSPECTOR OF POLICE, MALAPPURAM POLICE STATION, ERNAKULAM DISTRICT, PIN-683111. ## **OTHER PRESENT:** SRI. K.A.ANAS- P.P THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.11.2021 ALONG WITH B.A NO.7592 OF 2021, THE COURT ON 24.11.2021 DELIVERED THE FOLLOWING: B.A.No.8113 and 7592 of 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 BAIL APPL. NO. 7592 OF 2021** **(CRIME NO.525 OF 2020 OF MALAPPURAM POLICE STATION)** ## **PETITIONER/ACCUSED NO.7** SAJEEDMON V.S AGED 22 YEARS S/O.SIDDIQUE, VEMBAYIL VEEDU, NELLIYAMBAM, WAYANAD DISTRICT BY ADV BABU S. NAIR ## **RESPONDENTS/STATE AND COMPLAINANT** 1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031 2 THE STATION HOUSE OFFICER MALAPPURAM POLICE STATION, MALAPPURAM DISTRICT, PIN 676 505 ## **OTHER PRESENT:** SRI. K.A.ANAS- SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.8113 and 7592 of 2021 3 ## **ORDER** Applications for regular bail. 2. The petitioner in B.A.No.7592 of 2021 is the 7[th] accused in Crime No.525/2020 of Malappuram police station registered for the offences punishable under Sections 20(b)(ii)(c),29 and 27A of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act'). B.A.No.8113 of 2021 is filed by the 10[th] accused in the said crime. 3. The circumstances which led to the registration of this FIR against the petitioners and others in brief are as follows: On 24.9.2020 at about 3.30 p.m the Inspector of Police Malappuram and his team have intercepted a lorry bearing Reg.No.KL10AP-3484 and an Innova Car bearing Reg.No.MH-12-KN-9226 and conducted search on suspicion and seized 318 kgs of ganja transported for the purpose of sale and thereby registered the crime. The accused No.6,7 and 8 took to their heals on seeing the police party. But accused No.1 to 5 were apprehended then and there and the case was registered. 4. The prosecution records would reveal that though accused No.6,7 and 8 were also with accused Nos.1 to 5 in transporting the contraband, they were not arrested and on investigation it was B.A.No.8113 and 7592 of 2021 4 revealed that accused Nos.9 to 12 had helped them to escape from the clutches of police in the car owned by the 12[th] accused. The further prosecution case is that the contraband was transported from Andhra Pradesh to Kerala pursuant to a criminal conspiracy hatched between the accused on several days. To purchase the contraband the 9[th] accused had paid a sum of Rs.2 lakhs and the 10[th] accused contributed 40,000/- and the 12[th] accused a sum of Rs.20,000/- and they have entrusted the amount to the 1[st] accused. Later on 17.9.2020 the 14[th] accused had also entrusted an amount of Rs.2,00,000/- to the 6[th] accused. Apart from that, the 1[st] accused has also contributed Rs.20,000/- for the purchase of the contraband. Then the 3[rd] accused had taken the vehicle on rent from CW8 under the pretext for transportation of vegetables for sale. The 2[nd] accused had taken the Innova Car bearing Reg.No.MH-12-KN-9226 from CW28 for a short trip and accused Nos.1 to 8 then started from Kerala with these two vehicles to Andhra Pradesh at 20.00 hours on 17.9.2020 and purchased 318 kgs of ganja from the 13[th] accused and while transporting the same, they were intercepted by the police officials at about 3.30 p.m on 24.9.2021 and the contraband was seized. The prosecution records would further reveal that the 9[th] accused had transferred money to the account of the 10[th] accused and to the 8[th] accused to enable them to harbor, as police was looking for them. B.A.No.8113 and 7592 of 2021 5 5. So in short, all the accused have active participation in committing the alleged offence and pursuant to the registration of the FIR the investigation of the case has been completed and now the case is pending before the Special Court for SC/ST (POA) Act and NDPS Act cases, Manjeri as S.C No.397 of 2021. 6. The learned counsel for the 7[th] accused had contended that apart from the confession statement of the co-accused there is no evidence to connect this petitioner with the alleged crime. He is a youngster aged only 22 years and is a driver by profession. Hence, seek his release on bail. 7. The 10[th] accused has also contended that there is absolutely no material to connect him with the alleged offence. The allegation that he has financed to purchase the contraband is absolutely false and he has not committed any offence as alleged. 8. Heard both sides. 9. The 7[th] petitioner has been in custody since 7.10.2020 and the 10[th] accused in custody from 14.11.2020. 10. A1 to A5 were caught red handed with the contraband articles by the police while they were engaged with the transportation of the narcotic drugs along with accused Nos.6,7 and 8 is the prosecution case. But they managed to flee away from the spot on seeing the police party. The prosecution case that the transportation of B.A.No.8113 and 7592 of 2021 6 ganja was pursuant to the criminal conspiracy hatched between the accused and that the amount was handed over to the 1[st] accused by accused Nos.6, 9, 10, 12 and 14. The CD file itself reveals that they hatched conspiracy at various places and the investigating agency had collected materials to substantiate the same. The materials so far collected by the investigating agency would indicate that the 3[rd] accused had hired the lorry bearing Reg.No.KL-10-AP-3484 from CW8 under the pretext that they have to bring vegetables from Andhra Pradhesh to Kerala for his business purpose. Like that the 2[nd] accused had took the Innova car bearing Reg.No.KL-11- A4-4915 from CW28 as if he requires the same to go for a tour. 11. So prima facie materials are available to show that these petitioners are not falsely implicated in the case as alleged by them. So also, as asserted by the learned counsel for the petitioner(A7) only the confession statement is available which is not admissible as per the decision of the Supreme Court in **Tofan Singh v. State of Tamil Nadu** [2020 (6) KHC 111], is not correct. But it appears that the prosecution had collected materials to connect this accused with the alleged crime. At this stage of considering the bail application a mini trial is not possible and that is a matter to be decided at the time of trial of the case. The contraband involved in this case is large quantity ie; much more than the commercial quantity. Therefore, the provisions B.A.No.8113 and 7592 of 2021 7 ## under Sec.37 of the Act is also attracted. ## 12. In **State of Kerala v. Rajesh** (2020(1) KHC 557) the ## Apex Court held as follows: “20. The scheme of S. 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S. 439 of the Cr.PC, but is also subject to the limitation placed by S.37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban of granting bail operates. 21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of S.37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” 13. It is significant to note that they could not point out that reasonable grounds ie; something more than prima facie grounds are there to show that are not guilty of the offence charged. (See. **Union** B.A.No.8113 and 7592 of 2021 8 **of India v. Shiv Shanker Kesari [(2007) 7 SCC 798** ]. When the materials in the present case are evaluated keeping in view of the proposition of law as enunciated in the above referred decisions, I have no doubt to hold that the petitioners could not establish a case so as to entitle them to get an order of bail at this stage. So also the apprehension expressed by them that there can be no fair trial, or efficacious conduct of defence is not possible if they remain in custody is without any merits. Interest of the society has a predominant role and so the court has to take into consideration of the same while granting bail. Long period of incarceration is not at all a ground to enlarge the accused on bail in a case where huge quantity of narcotic items are involved. 14. As mentioned above, whether there was compliance of the procedure laid down under Section 42 of the NDPS Act or not, could be ascertained at the time of trial. Prima facie it appears that there was compliance of all the mandatory provisions and the petitioners were found in conscious possession of narcotic drugs in commercial quantity. That be so, I find absolutely no justification or reasonable grounds to believe or at least to presume that the petitioners are totally innocent of the allegations levelled against them. Moreover as charge sheet has been filed, trial could be commenced without any delay and granting of bail will upset the trial B.A.No.8113 and 7592 of 2021 9 of the case. Therefore, the trial court shall take earnest effort to dispose of the case at the earliest. For the foregoing reasons, these petitioners are not entitled to be released on bail. Hence, the bail applications are dismissed. Sd/- SHIRCY V JUDGE smm