BA Nos. 7407, 5214 & 6694 of 2023 (Sooraj S. Nair; Muhammed Safal; Adarsh) v. State of Kerala

BA Nos.7407, 5214 & 6694 of 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** **BAIL APPL. NO. 5214 OF 2023** **CRIME NO.51/2022 OF AMARAVILA EXCISE RANGE OFFICE,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/3rd ACCUSED:** MUHAMMED SAFAL, AGED 22 YEARS S/O SHAHJAHAN, SHAJI MANZIL, OZHUKUPARA, MANIKKAL NEDUMANGAD, THIRUVANANTHAPURAM, PIN - 695541 BY ADVS. NABIL KHADER M.P MADHAVANKUTTY ## **RESPONDENT/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 CIRCLE INSPECTOR OF EXCISE AMARAVILA EXCISE RANGE OFFICE THIRUVANANTHAPURAM -, PIN - 695122 SRI.P.G.MANU(MAMMALASSERY) SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.09.2023, ALONG WITH Bail Appl..6694/2023, 7407/2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING: BA Nos.7407, 5214 & 6694 of 2023 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 BAIL APPL. NO. 6694 OF 2023 CRIME NO.51/2022 OF AMARAVILA EXCISE RANGE OFFICE, THIRUVANANTHAPURAM** ## **PETITIONER/2ND ACCUSED:** ADARSH, AGED 22 YEARS S/O JAYACHANDRAN CHETTIAR, SREE SIVAM, BEHIND THE VETTOOR PANCHAYATH OFFICE, MEL VETTOOR P.O., VARKALA , THIRUVANANTHAPURAM, PIN - 695312 BY ADVS. M.T.SURESHKUMAR MANJUSHA K SREELAKSHMI SABU RESWIN A. KHADIR ## **RESPONDENT/COMPLAINANT & STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 SRI.P.G.MANU(MAMMALASSERY) SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.09.2023, ALONG WITH Bail Appl..5214/2023 AND CONNECTED CASES, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING: BA Nos.7407, 5214 & 6694 of 2023 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 BAIL APPL. NO. 7407 OF 2023 CRIME NO.51/2022 OF AMARAVILA EXCISE RANGE OFFICE, THIRUVANANTHAPURAM** ## **PETITIONER/4TH ACCUSED:** SOORAJ.S.NAIR, AGED 23 YEARS S/O SURESH KUMAR, RESIDING AT NIKUNJAM, AJAYAPURAM DESOM, PANAYAMUTTAM P.O, PANAVUR VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT,, PIN - 695561 BY ADVS. J.R.PREM NAVAZ SUMEEN S. MUHAMMED SWADIQ ## **RESPONDENT/COMPLAINANT & STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 RI.P.G.MANU(MAMMALASSERY) SR.PUBLIC PROSECUTOR **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.09.2023, ALONG WITH Bail Appl..5214/2023 AND CONNECTED CASES, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING:** BA Nos.7407, 5214 & 6694 of 2023 4 # **MOHAMMED NIAS C.P.J** **..................................................** **BA Nos.7407, 5214 & 6694 of 2023** **........................................... Dated this the 6[th] day of October, 2023** ## **O R D E R** This application is filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail. 2. The petitioner, in BA No.7407/2023 is the 4[th] accused, 3[rd] accused is the petitioner in BA No.5214/2023 and 2[nd] accused is the petitioner in BA No.6694/2023, in Crime No.51/2022 of Amaravila Excise Range, Thiruvananthapuram, for having committed offences punishable under Section 22(c), 29 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecution allegation is that, while the Excise Circle Inspector and party of Neyyattinkara were conducting vehicle inspection at 8.25 a.m, on 10.11.2022 at a place near Amaravila RTO checkpost, Kollayi Village, a vehicle bearing reg.No.KL-01-AM-7666 BA Nos.7407, 5214 & 6694 of 2023 5 named Murahara travels, came from Kaliyikkavila side and on checking the vehicle, it was found that the 1[st] accused consciously possessed 75 grams of MDMA (methamphetamine as per analysis report). In addition, the detecting officer from the first accused seized one mobile phone, one smart watch, 5 ATM cards, etc., and he was arrested on the spot, and contraband articles were seized. The second accused funded the first accused for purchasing the MDMA. On investigation, it was found out that the first accused purchased the contraband drug from the third accused at Yelehenka, Bangalore. The 4[th] accused stood as an intermediary between the first and third accused and aided the smooth passage of the contraband drug from the third accused to the first accused. An amount of Rs.92,000/- was transferred by one Niranjan Prakash, the friend of the 4th accused, to the bank account of the 3rd accused as per the instructions of the 4[th] accused. The 5th accused is the primary source from whom the narcotic drug moved to the remaining accused. On a scientific examination, it is confirmed that the contraband drug seized from the accused is methamphetamine and thereby committed the above offence. 4. The learned counsel appearing for the petitioner in BA No.5214/2023 would submit that the allegations against him are based on the confession of the first accused, the petitioners A1 and A3 were BA Nos.7407, 5214 & 6694 of 2023 6 found under the same tower location, the internet calls and the money transfer. He submits that CW9, CW10 and CW11 inspite of the financial transactions. He also argues that there is no conscious possession as far as the third accused is concerned. He is an engineering student who was residing in Bangalore in a rented building under Annexure 5 rent deed. There is no financial transaction between A3 and any of the other accused, as between A3 and A4, there are no calls at all. This would show that he is completely innocent of the allegations. He says the arrest was on 14.02.2023, and further incarceration is unnecessary. 5. Learned counsel appearing for the petitioner in BA No.6694/2023 submits that there is no bank statement to connect him and the other accused, and there has been no funding to the first accused, although there is acquaintance with the first accused as they have worked together. The entire allegations against the second accused in the final report would show that they are based on confession. He also submitted that he had responded to the notice issued by the investigating officer to appear and thereafter was arrested. He says that the petitioner was arrested on 10.11.2022, and further incarceration is unnecessary. He also argued that CW9 and CW11 were not made accused and that BA Nos.7407, 5214 & 6694 of 2023 7 Rs.96000/- was transferred by him to A1, who had worked along with him. 6. Learned counsel for the petitioner in BA No.7407/2023 submits that the confessions made against him are not admissible going by the principles in **Tofan Singh v. State of Tamil Nadu** [(2021) 4 SCC 1]. He also argues that no materials connect him with the crime. 7. The learned public prosecutor opposing the bail application submitted that there were 11 calls between the first accused and A4 between 5.11.2022 and 10.11.2022, the date of occurrence, there were four calls between A4 and A2, and there were 14 calls in total with A3 by others accused. The statements of CW9 and CW11 clearly showed the manner in which the dealings were done. He submitted that the bank accounts and the call data records would clearly show the involvement of all the accused and prayed for the dismissal of the application. ## 8. Heard the rival submissions. 9. As regards the petitioner in BA No.5214 of 2023, it has to be noted that he is roped in on the basis of the confession of the co- BA Nos.7407, 5214 & 6694 of 2023 8 accused for the alleged internet calls no proof as such is on record. A4 rent deed, at least _prima facie,_ justifies his presence in the locality of the rented premises. As regards the petitioner in BA No.6694/2022, it is his contention that there are bank transactions between him and the second accused and that he is acquainted with the first accused as they have worked together. The transfer of Rs.96,000/- by A2 to A1 is on account of their friendship. All other materials against him are on the basis of the confession. As regards the petitioner in BA No.7407/2023, the financial transactions, as well as the confession of the co-accused, are mainly relied upon. It is also curious to note that CWs 9, 11 and 12, through whose accounts money has also been transferred, are not arrayed as accused. Of course, there is power for the prosecution to array persons as accused even at a later stage. There is no reason why the said witnesses should be treated differently from the petitioners herein if the allegation is that they were part of the financial transactions. Under the above circumstances, the version of the prosecution,exfacie, is doubtful. 10. True, the documents indicate monetary transactions between some of the accused, but the question as to whether those transactions were in connection with the sale of narcotic drugs, etc., are all aspects to be established during the trial. At present, apart from the confession BA Nos.7407, 5214 & 6694 of 2023 9 statements of the accused, the other materials are not liable to be accepted for declining bail. For recording satisfaction as contemplated under Section 37 of the NDPS Act, the lack of further materials raises a reasonable doubt about the involvement of the petitioners. It is also to be noticed that there are no antecedents against the petitioners, and they are in custody from 15.03.2023, 14.02.2023 and 10.11.2022, respectively. The trial of the case is also likely to be delayed. In such circumstances, I deem it appropriate to release the petitioners subject to the following conditions: 1. The petitioners shall be released on bail on executing separate bonds for Rs.1,00,000/- (Rupees One lakh only), each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court. 2. The petitioners shall appear before the Investigating Officer as and when directed to appear. 3. The petitioner shall not commit any offence of a similar nature while on bail. 4. The petitioners shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation; BA Nos.7407, 5214 & 6694 of 2023 10 5. The petitioners shall not leave India without the permission of the jurisdictional Court. 6. The petitioners shall surrender their passports, if any, within seven days from the date of their release before the Court concerned. If they do not have passports, they shall file affidavits to that effect before the court concerned on the date of execution of the bond or within three days thereafter. 7. The petitioners shall furnish their address where they reside along with their mobile numbers to the Court concerned as well as to the investigating officer. 8. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail and pass appropriate orders in accordance with law. ## **Sd/-** ## **MOHAMMED NIAS C.P.** **JUDGE** dlk 3.10.2023 BA Nos.7407, 5214 & 6694 of 2023 11 ## **APPENDIX OF BAIL APPL. 6694/2023** |PETITIONER'S|ANNEXURES| |---|---| |Annexure A1|TRUE COPY OF THE FINAL REPORT IN CR NO. 51| ||OF 2022 OF AMARAVILA EXCISE RANGE DATED 28-| ||4-2023| |Annexure A2|TRUE COPY OF THE ORDER DATED 4-4-2023 IN B A| ||NO. 1576/2023 OF THIS HON'BLE COURT| |Annexure A3|ACCUSED COPY OF THE ORDER DATED 17-6-2023 IN| ||CRL. MP NO. 1864 OF 2023 ON THE FILE OF| ||ADDITIONAL SESSIONS COURT- VII,| ||THIRUVANANTHAPURAM| BA Nos.7407, 5214 & 6694 of 2023 12 ## **APPENDIX OF BAIL APPL. 7407/2023** PETITIONER'S ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE ORDER DATED 02.08.2023 IN CRL.M.P. NO: 3002 OF 2023, PASSED BY THE COURT OF ADDITIONAL SESSIONS JUDGE-VII, THIRVANANTHAPURAM BA Nos.7407, 5214 & 6694 of 2023 13 ## **APPENDIX OF BAIL APPL. 5214/2023** |PETITIONER'S|ANNEXURES| |---|---| |Annexure A1|TRUE COPY OF THE CRIME AND OCCURRENCE REPORT| ||IN NDPS CRIME NO. 51/2023 DATED 10.11.2022| |Annexure A2|TRUE COPY OF THE CHEMICAL ANALYSIS REPORT| ||DATED 02.02.2023 BEARING CERT NO. 885/2023| |Annexure A3|TRUE COPY OF THE COMPLAINT 36A(1)(D) OF THE| ||NDPS ACT SUBMITTED BY THE EXCISE CRIME| ||BRANCH CIRCLE INSPECTOR- 1, AMARAVILA EXCISE| ||RANGE BEFORE THE ADDL. SESSIONS COURT,| ||THIRUVANANTHAPURAM DATED 28.04.2023| |Annexure A4|TRUE COPY OF THE RENT AGREEMENT EXECUTED BY| ||THE PETITIONER DATED 24.09.2022| |Annexure A5|TRUE COPY OF THE ORDER DATED 23.03.2023 IN| ||CRL M.P NO. 799 OF 2023 IN CRIME NO. 51/2023| ||OF AMARAVILA EXCISE RANGE, PASSED BY THE| ||ADDITIONAL SESSIONS COURT-I,| ||THIRUVANANTHAPURAM| |Annexure A6|TRUE COPY OF THE ORDER DATED 31.05.2023 IN| ||CRL. M.P. NO. 1529/2023 IN S.C. NO. 948/2023| ||PASSED BY THE SESSIONS COURT,| ||THIRUVANANTHAPURAM| |Annexure A7|TRUE COPY OF THE THE EMAIL COMMUNICATIONS| ||FROM THE HEAD OF THE DEPARTMENT OF| ||PETITIONER COURSE|