Bail Applications Nos. 970/2023 and 1109/2023, in Crime No. 905 of 2022, Angamaly Police Station, Ernakulam — Muhammed Afzal and Vishnu v. State of Kerala

1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 1[ST] DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 BAIL APPL. NO. 970 OF 2023 ``` ## **`CRIME NO.905/2022 OF ANGAMALI POLICE STATION, ERNAKULAM`** ## **`PETITIONER/ACCUSED NO.2:`** ``` MUHAMMED AFZAL AGED 26 YEARS S/O.MUHAMMED ALI, PUTHENPURAYIL HOUSE, THIRUVALLOOR, NJATTAPADOM BHAGOM, ALANGAD, ERNAKULAM DISTRICT, PIN – 682511. ``` ``` BY ADV VIVEK VENUGOPAL ``` ## **`- RESPONDENT/COMPLAINANT STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` BY SENIOR PUBLIC PROSECUTOR SRI P G MANU ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON22.05.2023 ALONG WITH B.A.NO.1109/2023, THE COURT ON 01.06.2023 DELIVERED THE FOLLOWING: ``` 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 1[ST] DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 BAIL APPL. NO. 1109 OF 2023 ``` ``` CRIME NO.905/2022 OF ANGAMALI POLICE STATION, ERNAKULAM PETITIONER/ACCISED NO.3: ``` ``` VISHNU AGED 24 YEARS S/O SASI, PERIKKATTIL HOUSE, VALAYAPURAM BHAGOM, NEDUMBASSERI VILLAGE, ERNAKULAM DISTRICT, PIN – 683585. ``` ``` BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA SRINATH C.V. ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2THE STATION HOUSE OFFICER ANGAMALY POLICE STATION, ANGAMALY, ERNAKULAM DISTRICT, PIN – 683572. ``` ``` BY SENIOR PUBLIC PROSECUTOR SMT. T.V.NEEMA ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22.05.2023 ALONG WITH B.A.NO.970/2023, THE COURT ON 01.06.2023 DELIVERED THE FOLLOWING: ``` 3 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.Nos.970 & 1109 of 2023_ _================================ Dated this the 1st day of June, 2023_ ## _**C O M M O N O R D E R**_ B.A.No.970/2023 is an application for regular bail filed by the 2nd accused in Crime No.905 of 2022 of Angamali Police Station, Ernakulam, under Section 439 of the Code of Criminal Procedure. 3rd accused in the same crime seeks regular bail in B.A.No.1109/2023. 2. Heard the respective counsel appearing for the petitioners and the learned Public Prosecutor in detail. Perused the documents placed by the petitioners as well as the relevant documents form part of the case diary and report of the Investigating Officer produced by the learned Public Prosecutor. 3. The prosecution case is that accused 1 to 4 hatched conspiracy to possess and sell MDMA; and in continuation of the said conspiracy, they jointly collected 198.36 grams of MDMA and stored the same in Bluetooth speakers. Thereafter, the said MDMA was forwarded through Blue Dart DHL 4 Courier service in Mumbai and received the same in Blue Dart DHL Office in Angamaly and the same was found in possession of the 1st accused when he had kept the same in a TATA Nano car bearing Registration No. KL04-AH4823, near Malabar Gold Jwellery, Angamali. Thereafter, the said contraband along with Hashish oil contained in a small plastic bottle of 03.89 gram and 3 LSD stamps kept on the body of the 1st accused were seized. Thereafter the 1st accused was arrested and crime alleging commission of offences punishable under Sections 22(c), 22(b), 20(b)(ii)(A), 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act' for short) was registered. 4. The specific point argued by the learned counsel for the petitioners is that there is no materials against accused Nos.2 and 3 and they were arrested and detained in custody from 05.10.2022 onwards merely on the basis of a confession statement given by the 1st accused and also on the basis of materials showing cash dealings between the 1st accused and accused Nos.2 and 3. It is argued by the learned counsel for the petitioners that since nothing was seized from the conscious possession of the petitioners and the available materials are only regarding transfer of money, the petitioners' complicity is much less and, therefore, the petitioners are liable to be released on bail and for which the rider under Section 37 of the NDPS Act would not apply, though the contraband is commercial in nature. 5. The learned counsel for the petitioners placed a decision of the 5 Apex Court reported in [2022 (1) KHC 853 : 2022 KHC OnLine 6172 : 2022 (2) SCALE 14 : 2022 (1) KLT 552], _**State by (NCB) Bengaluru & Ors. v. Pallulabid Ahmad Arimutta & Ors.**_ on this point. It is pointed out that, in the said case involving commercial quantity of contraband, bail granted to accused by the Karnataka High Court was challenged before the Apex Court and the Apex Court cancelled the bail granted to the 2nd accused, while confirming grant of bail to the other accused. 6. According to the learned counsel for the petitioners, the fact of the present case is similar to that in _**State by (NCB) Bengaluru & Ors. v. Pallulabid Ahmad Arimutta & Ors.**_ 's case ( _supra_ ). Therefore, the petitioners may be released on bail. 7. Whereas the learned Public Prosecutor strongly opposed grant of bail and pointed out involvement of the petitioners in this crime with materials to connect them in commission of this crime. It is submitted that accused Nos.1 and 2 jointly stayed at the lodge in Andheri, Mumbai from 04.09.2022 to 15.09.2022 and they had given I.D proof of one Alif Muhammed Saifudheen and the same was seized from the house of the 2nd accused during investigation. It is also argued that the 2nd and 3rd accused invested money in the account of the 1st accused and the bank details are also available in this regard. It is pointed out that there are documents to connect the 2nd and 3rd accused also in this regard, since they had entrusted money with the 1st accused to purchase the 6 ## contraband seized from the possession of the 1st accused. 8. On perusal of the decision in _**State by (NCB) Bengaluru & Ors. v.**_ ## _**Pallulabid Ahmad Arimutta & Ors.**_ 's case ( _supra_ ), in paragraphs 2 and 3 the Apex Court dealt the facts as under: _“2. xxxx xxxx xxxx Similarly, Mohammed Afzal [A – 6], respondent in SLP (Crl.) No.1454/2021 was arrested on an allegation that his call details record (For short `CDR') revealed that he was in constant conversation with A-2 and one Abu Thahir @ Abdu [A-5]. Additionally, reliance was placed by the Department on the statement of A-5 recorded under S.67 of the NDPS Act which purportedly revealed that both of them had arranged the drugs that were delivered to A-1 and A-2 on 22nd March 2019, who were going to carry the same in their luggage while flying to Doha._ _3. Munees Kavil Paramabath [A-8], respondent in SLP (Crl.) No.1454/2021 was purportedly found to be in conversation with A-2, A-6, A-7 and A-8 as per the CDR of A-5 on the date of the seizure. The petitioner – NCB claims that apart from the statement of A-5 recorded under S.67 of the NDPS Act, he had also voluntarily stated during his examination that he was paid money by A-8 for financing the drugs. Abu Thahir @ Abdu [A-5] and Sabir Bayan [A-7], respondents in SP (Crl.) No.1773-1774/2021 were similarly arrested on the statement of the co-accused, namely, A-2, A-6 and A-8 and on an allegation that flight tickets of A-1 were recovered from the house of A-5 and A-6.”_ 9. Thereafter, the Apex Court observed in paragraph 11 as under: _“11. However, the evidence brought before us against Mohammed Afzal [A-2], respondent in SLP (Crl.) No.1569/2021, subject matter of the second case i.e., NCB Case FN No.48/01/07/2019/BZU, who was granted bail vide order dated 08th January, 2020, will have to be treated on an entirely different footing. There are specific allegations levelled against the said respondent regarding recovery of substantial commercial quantities of drugs from a rented accommodation occupied by him pursuant to which he was arrested on 16th June, 2019. This aspect has been completely overlooked while passing the order dated 08th January, 2020 wherein, the only reason that appears to have weighed with the High Court for releasing him on bail is that his case stands on the same_ 7 _footing as A-1, A-3 and A-4 who had been enlarged on bail vide orders dated 11 th October, 2019, 16th September, 2019 and 09th September, 2019, in connection with the second case registered by the Department. We are of the firm view that A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view of S.37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act. That being the position, the petitioner – NCB succeeds in SLP (Crl.) No.1569/2021. The bail granted to the respondent -Mohammed Afzal [A-2] is cancelled forthwith at this stage and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody.”_ In the said case, the Apex Court also referred the decision in [2020 (6) KHC 111] : (2021) 4 SCC 1 : 2020 (2) KLD 781 : 2020 KHC OnLine 6616 : AIR 2020 SC 5592], _**Tofan Singh v. State of Tamil Nadu**_ to hold that confession statement recorded under Section 67 of the NDPS Act would remain inadmissible in trial of offences under the NDPS Act. In this case the Apex Court found that since nothing was recovered from the possession of the other accused except the 2nd accused and the connecting material is only the statement recorded under Section 67 of the NDPS Act and the call details. In such circumstances, the Apex Court not inclined to cancel bail granted to the other accused. 10. Coming to the case at hand, the prosecution has a specific case that accused 1 to 4 hatched conspiracy to deal with commercial quantity of MDMA, Hashish oil and LSD and accordingly they jointly transported the same by courier through Blue Dart DHL, Mumbai courier service to Blue Dart courier service in Angamaly and the same was collected by the 1st accused and 8 he was nabbed while he was transporting the same. The available evidence would go to show that the prosecution collected materials to show joint residence of the 1st and 2nd accused at a lodge in Andheri, Mumbai from 04.09.2022 to 06.09.2022 for the purpose of purchase and transport of the contraband. The prosecution also collected details regarding the transfer of money by the 3rd accused to the account of the 1st accused. Although it is argued that the money in the account of the 2nd accused was meant for the business of his father, the same cannot be justified by the available materials. As regards to financial dealings in between the 1st and 2nd accused. Badharudeen, S/o.Muhammed Vaidyar, who has been running SBI service point, given evidence along with CCTV footage to show that the 2nd accused transferred money to the account of the 1st accused through the Axis Bank during the relevant period and he identified the 2nd accused before the Investigating Officer. Similarly, the Investigating Officer collected documents showing transfer of money by the 3rd accused to the account of the 1st accused during the relevant period and the prosecution collected evidence in this regard along with CCTV footage. Going by the facts of the case, it is not safe to hold at this stage that the petitioners are innocent and, therefore, they shall be released on bail, diluting the rigour under Section 37 of the NDPS Act. 11. When the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 9 37 of the NDPS Act provides as under: _“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 27A 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._ 12. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail. 13. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, _**Union of India v. Shiv Shankar**_ _**Kesari**_ and held that the expression ‘reasonable grounds’ means something more than _prima facie_ grounds. It connotes substantial probable causes for 10 believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 14. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 15. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in _**Superintendent, Narcotics Central Bureau v. R.Paulsamy**_ [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], _**Customs, New Delhi v. Ahmadalieva Nodira**_ [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], _**Union of India v. Abdulla**_ [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], _**N.R.Mon v. Md.Nasimuddin**_ [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 11 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], _**Union of India v. Rattan Malik**_ [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], _**Union of India v. Niyazuddin**_ [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], _**State of Kerala v. Rajesh**_ [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ 799], _**Union of India v. Jitentra Giri**_ . 16. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are _sine qua non_ for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients. 17. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioners and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds 12 for believing that the petitioners are innocent and they will not commit any offence while on bail. Therefore, these applications for regular bail at the instance of the petitioners must fail. Hence both the petitions stand dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ 13 ## **`APPENDIX OF BAIL APPL. 970/2023`** ## `PETITIONER'S ANNEXURES` |`Annexure1`|`TRUE PHOTOCOPY OF THE LICENSE ISSUED BY ALUVA`| |---|---| ||`MUNICIPALITY DATED 10.08.2021 IN THE NAME OF`| ||`THE PETITIONER'S FATHER, MUHAMMED ALI.`| |`Annexure2`|`TRUE PHOTOCOPY OF THE RECEIPT ISSUED FROM`| ||`KERALA GRAMIN BANK, ALUVA BRANCH DATED`| ||`13.07.2022.`| |`Annexure3`|`TRUE PHOTOCOPY OF THE RECEIPT ISSUED FROM`| ||`KERALA GRAMIN BANK, ALUVA BRANCH DATED`| ||`01.09.2022.`| |`Annexure4`|`FREE COPY OF THE COMMON ORDER DATED 06.12.2022`| ||`PASSED BY THE I ADDITIONAL SESSIONS JUDGE,`| ||`ERANKULAM IN CRL.M.C.NO. 2709/2022.`| 14 ## **`APPENDIX OF BAIL APPL. 1109/2023`** ``` PETITIONER'S ANNEXURES ``` |`Annexure`|`1`|`TRUE COPY OF THE FIRST INFORMATION REPORT IN`| |---|---|---| |||`CRIME NO. 905 OF 2022 OF ANGAMALY POLICE`| |||`STATION, ERNAKULAM DISTRICT.`| |`Annexure`|`2`|`TRUE COPY OF THE SEIZURE MAHAZAR IN CRIME NO.`| |||`905 OF 2022 OF ANGAMALY POLICE STATION,`| |||`ERNAKULAM DISTRICT.`| |`Annexure`|`3`|`TRUE COPY OF THE REMAND REPORT OF THE`| |||`PETITIONER HEREIN IN CRIME NO. 905 OF 2022 OF`| |||`ANGAMALY POLICE STATION, ERNAKULAM DISTRICT.`|