BA Nos.3605/2022; 4929/2022; 5125/2022 v. State of Kerala (Crime No. 248/2022, Angamaly PS)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 BAIL APPL. NO. 3605 OF 2022** **CRIME NO.248/2022 OF ANGAMALY POLICESTATION, ERNAKULAM** ## **PETITIONERS/ACCUSED NO.7 & 8:** - **1 ABEESH,AGED 36 YEARS S/O. THAHA YOONUS, MADATHIPARAMBIL HOUSE, KALAMURI, KAIPAMANGALAM, THRISSUR DISTRICT, PIN - 680681** - **2 ANEESH,AGED 36 YEARS** - **S/O. THAHA YOONUS, MADATHIPARAMBIL HOUSE, KALAMURI, KAIPAMANGALAM, THRISSUR DISTRICT, PIN - 680681** **BY ADVS.** **P.T.SHEEJISH A.ABDUL RAHMAN (A-1917) VARNIBHA.T** ## **RESPONDENT/STATE:** **STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** ## **OTHER PRESENT:** **PP - SRI. K.A.ANAS** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.09.2022, ALONG WITH Bail Appl..4929/2022, 5125/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.Nos.3605, 4929 & 5125 of 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944** **BAIL APPL. NO. 4929 OF 2022** **CRIME NO.248/2022 OF ANGAMALY POLICESTATION, ERNAKULAM PETITIONER/ACCUSED NO.1:** **MUHAMMED SAHIR,AGED 28 YEARS, S/O.UNNIMOYI, ADIMARIKKARA HOUSE, KODUVALLY MANIPPURAM KARA, KOZHIKODE DISTRICT, PIN - 673572** **BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU SHIFNA MUHAMMED SHUKKUR GIRIDHAR KRISHNA KUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN – 682031 BY PP SRI.K.A.ANAS** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.09.2022, ALONG WITH Bail Appl..3605/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.Nos.3605, 4929 & 5125 of 2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944** **BAIL APPL. NO. 5125 OF 2022** **CRIME NO.248/2022 OF ANGAMALY POLICESTATION, ERNAKULAM** **PETITIONER/ACCUSED NO.9:** **SUNI C.S,AGED 43 YEARS S/O.SUBRAMANIYAN CHANTHANATHOPPIL HOUSE MANJALY, KARUMALLUR VILLAGE, MANNAM P.O, ERANAKULAM - 683520** **BY ADVS. NIJI K.SHAHUL P.A.AYUB KHAN** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN - 682031** - **2 THE INSPECTOR OF POLICE ANGAMALY POLICE STATION, ANGAMALY ERNAKULUM DISTRICT - 683572** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.09.2022, ALONG WITH Bail Appl..3605/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.Nos.3605, 4929 & 5125 of 2022 4 ## **VIJU ABRAHAM, J.** **................................................................. B.A.Nos.3605, 4929 & 5125 of 2022 .................................................................** Dated this the 22[nd] day of September, 2022 ## **ORDER** These are applications for regular bail. 2. BA No. 4929/2022 is filed by the 1[st] accused, BA No. 3605/2022 is filed by accused Nos. 7 and 8, whereas BA No. 5125/2022 is filed by the 9[th] accused in Crime No. 248/2022 of Angamaly Police Station registered alleging commission of offences punishable under Sections 20(b)(ii)B, 20(b)(ii)C, 29 and 8A(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. Prosecution allegation is that on 05.03.2022, 11.130 Kg of Ganja and 1.525 Kg of Hashish Oil were found in a car bearing Registration No. KL 07 AV 2050, and thereby the accused is alleged to have committed the offence. 4. The case of the petitioner in BA No. 4929/2022 is that he was arrested on 06.03.2022. Petitioner mainly contended that there are severe procedural lapse which entitles the petitioner to bail. Petitioner mainly contended that provisions of Section 42 of the NDPS Act has not been complied with. The contention of the petitioner is that any officer as mentioned in Section 42 receives any information regarding commission of B.A.Nos.3605, 4929 & 5125 of 2022 5 offence under this Act, must reduce the same in writing and then enter into and search any building, conveyance or place before sunrise and sunset and if search is between sunset and sunrise and he could not obtain a search warrant or authorization, he can enter and search after recording his grounds of belief. It is further mandated in Section 42(2) of the NDPS Act that an officer taking down any information in writing or records grounds for his belief, shall within 72 hours send a copy thereof to his immediate official superior. The specific case of the petitioner is that the information was in fact given by the Sub Inspector of North Paravur, Police Station and he has informed the same to the Angamaly Police. Petitioner contends that going by Section 42 of the Act, it is for the officer who originally got information i.e., Sub Inspector of North Paravur Police station to reduce the information into writing and intimate his Superior Officer as mandated in Section 42(2) and this was not done in the present case. His further contention is that even though the entry and search was between sunset and sunrise, he should have obtained a search warrant or he should have recorded the grounds of belief, which is absent in the present case. Since there is total violation of Section 42, there is absolutely no chance for a conviction and therefore the petitioner is entitled to bail. To substantiate his contention petitioner relies on _**Union of India vs. K.A Najeeb, 2021 KHC 6045**_ **,** _**Sarija Banu@ Janarthani @ Janani v. State through Inspector of Police,**_ **2004 (1) KLT OnLine 1208,** _**Basanth**_ B.A.Nos.3605, 4929 & 5125 of 2022 6 _**Balram v. State of Kerala, 2019 (1) KHC 667, Muhammed Ameen v. NCB, Cochin, 2020 KHC 645, Labeebul Mubarak v. State of Kerala, 2018 KHC 4639.**_ Petitioner also relies on the judgment in _**State of Rajasthan v. Jag Raj Singh @ Hansa, 2016 KHC 6413**_ . 5. Petitioners in BA No. 3605/2022 who are accused Nos. 7 and 8 submitted that they were arrested on 07.04.2022 and 24.04.2022 respectively. Though the petitioners earlier moved an application for bail before the Sessions Court, the same was rejected as per Annexure A1. The counsel for petitioners reiterated the contentions taken in BA No. 4929/2022 and submitted that they have been falsely implicated in the above said crime and further that the 2[nd] petitioner is an entrepreneur and to substantive the same produced Annexures 2 and 3 documents and whatever monetary transactions that has happened, are all legal and part of the business. 6. Counsel appearing for the petitioner in BA No. 5125/2022 though reiterated the contention in BA No. 4929/2022 further submitted that he is in custody from 06.04.2022 and that he has been falsely implicated in the above said crime and further that he is an interior designer by profession. In the floods of 2018, all his assets were lost and even though he attempted to restart his business, the said attempt also failed because of the lockdown due to Covid. Thereupon, one Abdul Jabbar, a neighbour of the petitioner, offered him a job as a driver. It is due B.A.Nos.3605, 4929 & 5125 of 2022 7 to the same that the petitioner has been arrayed as an accused. 7 Learned Public Prosecutor opposed all the bail applications mainly contending that 11.130 Kg of ganja and 1.525 Kg of Hashish Oil were found concealed in the back seat of a car in possession of the 1st accused and the same was recovered from the said car which was parked in the parking shed in the backside of the Federal City Flats. The specific case of the prosecution is that accused Nos. 1 to 13 conspired together and accused Nos.1, 2 and 9 on 23.02.2022 purchased the contraband from the 6[th] accused and brought the said contraband having 60 Kgs of Ganja and 4 Kgs of Hashish Oil from Odissa State in an Innova car bearing Reg No. MH 04 GD 2266 which is kept in use by the 2nd accused and the same was brought to Oceanus Crescent Flat and accused Nos. 2, 10 and 11 separated the same to various packets and tins and was given for sale to accused Nos. 3, 4, 5, 7 and 12. The investigation reveals that there are financial transactions between the accused for transfer of sale proceeds and that it is the balance of the said total contraband that was seized from the car. It is further contended that the 7[th] accused has received the contraband from the 1[st] accused and he along with the 8th accused who is his brother have engaged in the sale of the same. On verification of the account of the 7[th] accused, it is seen that there are huge monetary transactions and he has transferred the purchase money to the account of the 1[st] accused. It is also seen that huge monetary transactions B.A.Nos.3605, 4929 & 5125 of 2022 8 are seen in the account of the 8th accused also, and there were monetary transactions between the accused. Learned public prosecutor further submitted that 9th accused had an active role in the commission of the offence in as much as he was involved in the conspiracy and also travelled to Odissa for procurement of the alleged contraband. Learned Public prosecutor further submits that all the procedural formalities have been complied with including the procedure laid down under Section 42. The learned public prosecutor would submit that it is not right to contend that it is for the officer, ie., Sub Inspector of North Paravur Police Station who gave information to the Sub Inspector of Police, Angamaly to reduce the information into writing and a bare reading of Section 42 makes it explicitly clear that it is for the officer who got information and proceed to enter and conduct search and seizure, to reduce the same into writing, and report the same to the superior officer within 72 hours. Learned Public Prosecutor contended that the information received by the SHO Angamaly has been reduced into writing and forwarded to his Superior Officer as mandated in Section 42. He further contended that the grounds of belief was also recorded and the same was also informed to the superior officer to which the learned counsel for the petitioner would submit that the same is not as mandated as per the provisions of the NDPS Act. Learned Public Prosecutor relies on the judgment in _**Sajan Abraham v. State of Kerala, 2001 KHC 685**_ and _**Union of India through Narcotics Control Bureau,**_ B.A.Nos.3605, 4929 & 5125 of 2022 9 _**Lucknow v. Md. Nawas Khan, 2021 KHC 6503.**_ Learned Public Prosecutor further submitted that investigation is going on. Therefore, on the basis of the same, the learned public prosecutor opposed the application for bail. 8. It is true that in the judgments relied on by the petitioners it was held that when there is violation of the procedures as mandated under the Act it will definitely affect the prosecution case. Here is a case where the prosecution contends that in the investigation so far conducted the role of the petitioner is clearly revealed and the matter is pending investigation. The specific case of the prosecution is that procedure under Section 42 in the matter of recording of information and also the ground of belief and consequential intimation of the same to the superior officer as provided under Section 42 (2) has been complied with. In the said circumstance, whether there is substantial compliance of the provisions of Section 42 or not, I prima facie feel, cannot be looked into at the time of consideration of the bail application in as much as it is not a case of total non-compliance of the said provision. In _**Sajan Abraham’s**_ case supra, it was held that provisions of Section 42 cannot be said to be violated merely due to nonrecording of information and non-communication to the superior officer. In _**Nawas Khan’s**_ case supra, the Apex Court has recently held that the question as to whether there is substantial compliance with Section 42 or not is not a matter which could be looked into at the time of consideration B.A.Nos.3605, 4929 & 5125 of 2022 10 of a bail application and the said question is one that should be raised in the course of the trial. In the said judgment it was also held that a finding of the absence of possession of contraband on the person of the accused does not absolve it the level of scrutiny required under Section 37 of the NDPS Act. 9. Since the contraband involved is of commercial quantity, the rigor of Section 37 of the NDPS Act will definitely come into play, and for the release of the petitioner on bail, the twin conditions provided in the said section are to be satisfied. I am of the prima facie view that the petitioner could not substantiate that the rigor under Section 37 of the NDPS Act will not apply in the facts and circumstances of this case. In view of the same, I find no reason to release the petitioners on bail at this stage, and these bail applications are accordingly dismissed. It is made clear that these prima facie observations are made for the limited purpose of deciding the bail applications and the above opinion expressed shall not be regarded as opinion on merits, during trial. Sd/- **VIJU ABRAHAM JUDGE** cks