Bail Applications Nos. 3658/2022 and 3695/2022 (Manoj Kumar v. State of Kerala and Sivakumar v. State of Kerala)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **BAIL APPL. NO. 3658 OF 2022** **AGAINST THE ORDER/JUDGMENT Bail Appl. 108/2022 OF HIGH COURT OF** **KERALA CRIME NO.12 OF 2021 OF EXCISE ENFORCEMENT AND ANTI NARCOTICS** **SPECIAL SQUAD, THIRUVANATHAPURAM** ## **PETITIONER/ACCUSED NO.2:** **MANOJ KUMAR,AGED 43 YEARS S/O. SIVANANDAN, RESIDING AT KADAKAMBU, PUTHUVAL PUTHEN VEEDU, ATHIYANOOR, ARALUMOOD P.O, THIRUVANANTHAPURAM., PIN - 695123** **BY ADVS. BALAMURALI K.P. AMALA.J.RAJ JEREES J. S.JAYANT KRISHNAA GOKUL T.S.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, BY ADV PUBLIC PROSECUTOR** **OTHER PRESENT:** **0 PP - SMT. NIMA JACOB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.09.2022, ALONG WITH Bail Appl..3695/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3658 & 3695 of 2022 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **BAIL APPL. NO. 3695 OF 2022 CRIME NO.12 OF 2021 OF EXCISE ENFORCEMENT AND ANTI NARCOTICS** **SPECIAL SQUAD, THIRUVANATHAPURAM** **PETITIONER:** **SIVAKUMAR,AGED 35 YEARS SON OF DASAN,RESIDING AT KOTTARATHUVILA VEEDU, VAZHUTHOOR DESOM,PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,, PIN - 695121** **BY ADVS. MAJIDA.S AJIKHAN.M** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 CIRCLE INSPECTOR** **EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, THIRUVANANTHAPURAM,, PIN - 695001** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.09.2022, ALONG WITH Bail Appl..3658/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3658 & 3695 of 2022 3 ## **VIJU ABRAHAM, J.** **................................................................. B.A.Nos. 3658 & 3695 of 2022 .................................................................** Dated this the 27[th] day of September, 2022 ## **ORDER** These are applications for regular bail. 2. B.A. No.3695 of 2022 is filed by the 1[st] accused whereas B.A. No.3658 of 2022 is filed by the 2[nd] accused in Crime No.12 of 2021 of Excise Enforcement and Anti Narcotics Special Squad, Thiruvanathapuram alleging commission of offences punishable under Sections 8(c), 20(b)(ii)(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. The prosecution case is that on 01.12.2021 at about 9:45 p.m., the petitioners and the other accused were found in possession of 25 kgs of ganja meant for sale in contravention of the provisions of NDPS Act, out of which 22.50 kgs of ganja was recovered from the residence of the 2[nd] accused and another 2.50 kgs was recovered from a vehicle bearing registration No. KL-16-A-4595. A sum of Rs.25000/was recovered from the possession of the 1[st] accused and two mobile phones were also recovered from the accused persons. Thus the accused have committed the above offences. 4. The case of the petitioner in B.A. No.3695 of 2022 who is BA Nos.3658 & 3695 of 2022 4 the 1[st] accused in the above-said crime is that he was arrested on 01.12.2021 and that he was falsely implicated in the above said crime. As per the prosecution allegation, when the investigating officers came to one NIMS Hospital, they found one Scorpio Car bearing registration No. KL-16-A-4595 and the petitioner came there in a bullet and handed over one big shopper to the person sitting in the front seat of the car and received some cash from them. The Scorpio car went away suddenly and the petitioner was apprehended and on the basis of the information given by him, the house of the 2[nd] accused was searched and seized 22.500 kgs of ganja and later on 2.500 kgs of ganja was seized from the said Scorpio car. It is alleged that the said case is only a cooked-up story and that the petitioner came to the hospital for treatment of his child, to substantiate the same he has produced Annexure 2 medical certificate. Petitioner has no other criminal antecedents. It is the further contention of the petitioner that the money recovered from him is one given to him by his brother-in-law by pledging gold ornaments. Petitioner further contended that even though CCTV footages are available the same was not produced by the investigating agency and that as no recovery was affected directly from the petitioner, this will go against the case of the prosecution. To substantiate the same, the petitioner relies on the judgment in **Satish Singh v. State of Himachal Pradesh, 2020 KHC 4481** . Petitioner has a further case that when there is violation of BA Nos.3658 & 3695 of 2022 5 mandatory provisions of Section 50 of the NDPS Act, petitioner is entitled for bail and petitioner relies on judgment in **Labeebul Mubarack v. State of Kerala and another, 2018 KHC 4639** and also the judgment in **Muhammed Ameen and another v. Narcotic Control Bureau, Cochin, 2020 (1) KHC 645** . Petitioner also relies on the judgment in **Sei Minthang Touthang v. Officer in Charge, Manipur, 2021 KHC 2259,** and **Kuldeep Singh v. State of Himachal Pradesh, 2021 KHC 2543** . The petitioner further contended that one of the witnesses to the seizure mahazar has not signed the same and therefore the seizure is illegal and the petitioner is entitled to bail. Petitioner further contended that though the petitioner is alleged to have received money and handed over the contraband, no site mahazar is seen prepared and that it will go against the case of the prosecution. To substantiate the said contention, the petitioner relies on the judgment in **In Re: Ansar Ali, 2018 KHC 4677** . The petitioner has a further case that sampling was done without following the procedure laid down in Standing Orders in as much as the contraband which was kept in various packets were mixed together. 5. The case of the petitioner in B.A. No.3658 of 2022 who is the 2[nd] accused in the above-said crime is that he was arrested on 01.12.2021 and that his earlier bail application was dismissed as per Annexure A1 due to a wrong submission made by the counsel. The petitioner is the only person to look after the affairs of his aged mother BA Nos.3658 & 3695 of 2022 6 who is ailing. Petitioner has a further case that the final report is filed by the Asst. Commissioner of Excise who is not an authorized officer to submit a complaint under the Act. He further contended that the charge sheet has been filed in a piecemeal manner and the same is not acceptable and to substantiate the same he relies on the judgment in ## **Furtado v. CBI, 1996 KHC 257.** 6. Learned Public Prosecutor seriously opposed the applications for bail mainly contending that on getting information that ganja is being sold in the parking ground of NIMS Hospital, Neyyattinkara, Excise party reached there and found that the 1[st] accused who is the petitioner in B.A. No.3695 of 2022 came in a bullet and handed over a cover to A4 and he thereafter handed over a bundle of currency notes to A1 and when Excise party attempted to apprehend them, the Scorpio car moved forward in a rash manner, and they escaped from the scene. But the 1[st] accused was apprehended and on his information, it is revealed that ganja is kept in the house of the 2[nd] accused who is the petitioner in B.A. No. 3658 of 2022 and thereafter in a sack, ganja was found kept in 18 packets, and it was revealed that one of the relatives of the 2[nd] accused, Shri. Shanthibooshan, who is the 3[rd] accused had brought this contraband from Andhra Pradesh, and they also received a portion of the sale receipt. The ganja kept in 18 packets was weighed, and it was found to be 22.5 kgs, and when the Scorpio BA Nos.3658 & 3695 of 2022 7 jeep was searched 2.5 kgs of ganja was also seized. Body search was also conducted in the presence of a Gazetted Officer. It is contended by the learned Public Prosecutor that both the accused have an active role in the commission of the offence. Verification of the CDR details revealed the role of the accused in the alleged offence. The 1[st] accused is the employee and helper of Shanthibooshan who is the 3[rd] accused, and the Bullet bike used for sale of the contraband was given to the 1[st] accused by the said Shanthibooshan. It is found that the 4[th] accused is involved in another NDPS case, Crime No.392 of 2022 of Valavupacha Police Station whereas the 1[st] accused, petitioner in B.A. No.3695 of 2022 is involved in two crimes, Crime No. 104 of 2015 of Neyyatinkara Police Station and Crime No.928 of 2016 of Kanjiramkulam Police Station, whereas the 2[nd] accused who is the petitioner in B.A. No.3658 of 2022 is involved in Crime Nos.355 of 2003 and 2883 of 2020 of Neyyatinkara Police Station and also in Crime No.154 of 2020 of Parassala Police Station. As regards the contention that no site mahazar was prepared at NIMS Hospital premises, it is the case of the prosecution that scene mahazar of the house from where the contraband was seized is prepared. It is further contended by the learned Public Prosecutor that the contention that Asst. Excise Commissioner is not competent to file a complaint is without any basis in as much as Government has issued notification G.O.(M.S.) No.163/92 BA Nos.3658 & 3695 of 2022 8 dated 20.10.1992 wherein the Government has authorized all officers of and above the rank of Excise Inspectors of the Excise Department and all officers of and above the rank of Sub Inspectors of Police Department to file complaint in respect of offences under the NDPS Act before the Special Courts within the area of their respective jurisdiction. It is further contended by the learned Public Prosecutor that procedural lapses if any including the contention that sampling was done not in accordance with the Standing Orders are not matters which should be considered at the time of deciding a bail application and that those are all matters to be considered at the time of trial. To substantiate the said contention, the learned Public Prosecutor relies on the judgment in **Sumit Tomar v. State of Punjab, (2013) 1 SCC 395.** 7. Learned counsel for the petitioners submits that sampling was not done in accordance with Standing Orders in as much as the contraband was mixed and thereafter the sample was taken. To which, the learned Public Prosecutor submits that in the judgment of the Apex Court in **Sumit Tomar** ’s case supra, the court specifically considered a similar issue and rejected the contentions taken that the investigating agency should have taken two samples each from the two bags without mixing. The Apex Court was considering the effect of taking samples after mixing the contraband and held that merely because different punishments have been prescribed depending on the quantity of the BA Nos.3658 & 3695 of 2022 9 contraband, mixing of two bags will not cause any prejudice to the appellant therein and rejected the contention taken by the appellant therein that police should have taken two samples each from the two bags. In view of the same, I am of the opinion that any violation of the Standing Order is a matter which should be adjudicated at the time of trial. Petitioner relies on **Satish Singh** ’s case supra to contend for the position that when recovery is not taken directly from the accused and there are no records to show phone call exchange between the accused person, the petitioner is entitled for bail. In the present case, the 1[st] accused was arrested while he was attempting to sell 2.5 kgs of ganja out of the total 25 kgs and the amount of Rs.25000/- received as sale consideration and the motorcycle used was seized from the 1[st] accused, and he was arrested at the spot. Later on, the Scorpio car in which the persons who came to purchase the contraband, which was ridden in a high speed and escaped was later seized and from which 2.5 kgs of ganja was seized. Further, 22.50 kgs of ganja was seized from the possession of the 2[nd] accused. Therefore, the decision relied on by the petitioner is not applicable in the facts and circumstances of the present case. The decision in **Labeebul Mubarack** ’s case and **Muhammed Ameen** ’s case supra are dealing with cases where serious violation of the procedure was noted. But the said decisions are not applicable in the facts and circumstances of the present case in as much as the BA Nos.3658 & 3695 of 2022 10 procedure regarding search and seizure has been complied with. In **Sei Minthang Touthang** ’s case supra, the bail was granted specifically for the reason that the prosecution could not convince their contention at all which is not the scenario in the present case and therefore the said judgment is not applicable. **Kuldeep Singh’** s case supra, was decided on a totally different set of facts and is not applicable in the facts and circumstances of the present case. In **In Re: Ansar Ali’** s case supra relied on by the petitioner, no signature of a relation or a respectable member of the locality was affixed to the arrest memo of the petitioner therein and the said procedure was in violation of the mandate of **D.K. Basu v. State of West Bengal, AIR 1987 SC 610** and it is in the said circumstance the court interfered in the matter. Likewise, the contention of the petitioner in B.A.No.3658 of 2022 that the Assistant Commissioner of Excise is not competent to file a final report/complaint under the Act is not sustainable in view of the Government Order issued as G.O.(M.S.) No.163/92 dated 20.10.1992 wherein the Government has authorized all officers of and above the rank of Excise Inspectors of the Excise Department and all officers of and above the rank of Sub Inspectors of Police Department to file complaints in respect of offences under the NDPS Act before the Special Courts within the area of their respective jurisdiction. Likewise, in the judgment in **Furtado** ’s case supra, the court was considering grant of bail to the petitioner invoking BA Nos.3658 & 3695 of 2022 11 powers under Section 167 Cr.P.C.. Though a contention is taken on the basis of the **Furtado** ’s case supra that in the present case piecemeal report has been filed, nothing has been produced to substantiate the same. The contention regarding non-affixture of signature by one of the witnesses to the seizure is a matter to be considered at the time of trial. The Prosecutor relying on **Sajan Abraham v. State of Kerala, 2001 KHC 685** and **Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawas Khan, 2021 KHC 6503** contended that cases of non-compliance with the procedures are not matters which could be looked into at the time of consideration of a bail application and the said question is one that should be raised in the course of the trial. It is seen that both the petitioners have criminal antecedents also. 8. 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 petitioner on bail at this stage, and this bail application is accordingly dismissed. BA Nos.3658 & 3695 of 2022 12 It is made clear that these prima facie observations are made for the limited purpose of deciding the bail application and the above opinion expressed shall not be regarded as opinion on merits, during the trial. Sd/- **VIJU ABRAHAM JUDGE** cks