Binukuttan @ Binu K v. Directorate of Revenue Intelligence, Regional Unit Thiruvananthapuram

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 933 OF 2023 CRIME NO.DRI/COZU/TVM/02/2022 OF NARCOTIC CONTROL BUREAU, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM ``` ``` AGAINST THE ORDER DATED 17.12.2022 IN CRMP NO.3224 OF 2022 OF I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ``` ``` PETITIONER: ``` ``` BINUKUTTAN @ BINU. K, AGED 46 YEARS S/O KUTTAN S, RESIDING AT ARASUVILA VEEDU, AROOR, PONGANADU, PANGANADU P.O, KILIMANOOR, THIRUVANANTHAPURAM, PIN – 695601 ``` ``` BY ADV SASTHAMANGALAM S. AJITHKUMAR ``` ## `RESPONDENT:` ``` DIRECTORATE OF REVENUE INTELLIGENCE, REGIONAL UNIT THIRUVANANTHAPURAM, DEPARTMENT OF REVENUE INTELLIGENCE, REPRESENTED BY THE STANDING COUNSEL HIGH COURT OF KERALA ERNAKULAM, PIN – 682031 BY ADV SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT ``` ## `OTHER PRESENT:` ``` SC SRI S MANU ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.933/2023_ _-:2:-_ Dated this the 12[th] day of March, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in O.R.No.DRI/COZU/TVM/02/2022-NDPS of DRI Regional Unit, Thiruvananthapuram, registered against the accused (four in number), for allegedly committing the offences punishable under Sections 21(c), 23(c), 28 & 29 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short, ‘NDPS Act’). The petitioner was arrested on 20.09.2022. 2. The crux of the prosecution case is that; based on specific information received by the officers of the DRI, Thiruvananthapuram, on 20.09.2022, they conducted a search in a room situated on the first floor of a building at Neyyattinkara and seized 22.600 Kgs. _B.A.No.933/2023_ _-:3:-_ of heroin from the conscious possession of the accused Nos.1 & 2, who had brought the contraband from Harare, Zimbabwe, and stored the same in the said room. During the course of investigation, it was unveiled that the third accused is the key conspirator and coordinator between the accused Nos.1, 2 & 4 and one Koffie and Simon (African Nationals). Based on the said incriminating materials, the accused Nos. 3 & 4 are also arraigned as accused. Thus, the accused have committed the above offences. 3. Heard; Sri. Sasthamangalam S. Ajithkumar, the learned Senior Counsel appearing for the petitioner and Sri. S. Manu, the leaned Standing Counsel appearing for the respondent. 4. The learned Senior Counsel for the petitioner that there is no vehemently argued absolutely incriminating material to link the petitioner’s involvement in the above crime. It is solely on the _B.A.No.933/2023_ _-:4:-_ basis of the alleged confession made by the accused Nos.1 & 2 that the petitioner has been implicated in the crime. The confession statements given by the other accused is inadmissible in evidence, in view of the categoric declaration of law by the Hon'ble Supreme Court in **Tofan Singh v. State of Tamil Nadu** [(2021) 4 SCC 1]. The further contention of the respondent that there are certain telephonic conversation between the petitioner and the other accused is also not acceptable in evidence, in view of the law laid down by a three Judge Bench decision of the Hon'ble Supreme Court in **State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & Anr.** [2022 LiveLaw(SC)69]. The learned Senior Counsel further submitted that the respondent has violated the mandatory procedure contemplated under Sections 42 & 50 of the NDPS Act. Notwithstanding the above legal contentions, the petitioner has been in judicial _B.A.No.933/2023_ _-:5:-_ custody since 25.09.2022, the investigation in the case is complete, the recovery has been effected and the final report (complaint) has already been laid before the jurisdictional Court. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Standing Counsel for the respondent seriously opposed application. He has also filed a statement for and on behalf of the Investigating Officer. It is specifically contended that there are incriminating materials to corroborate the petitioner’s the involvement in the above crime. It is stated that the investigation has unveiled that the petitioner was the Co-ordinator between the accused Nos.1, 2 & 4 and the African Nationals. The petitioner had visited Mumbai to meet the accused Nos.1 &4 on their arrival from Malawi and accompanied them to Delhi for handing over the bags to the agents of the African _B.A.No.933/2023_ _-:6:-_ Nationals. The petitioner had introduced his brother to the African Nationals. His brother was arrested by the DRI officials, on 02.08.2022. The African Nationals have contacted the petitioner through Whatsapp. The messages and conversations have been deleted by the petitioner. There is no contravention of Sections 42 & 50 of the NDPS Act as alleged by the prosecution. The learned Standing Counsel also made available the complaint filed before jurisdictional Court to substantiate the statements given by the witnesses to establish the complicity of the petitioner in the crime. He also submitted that there are incriminating materials to prove that the petitioner had travelled to Mumbai and met accused Nos.1 & 4 and further that, the telephonic conversations between all the accused. Since the contraband is of a commercial quantity, the rigour under Section 37 of the NDPS Act applies. Therefore, this Court has to find that there are _B.A.No.933/2023_ _-:7:-_ reasonable grounds to hold that the petitioner has not committed the above offences. The materials on record, especially the complaint prove that there are reasonable grounds to believe the petitioner has committed the offences. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that he hatched a conspiracy with the accused Nos.1, 2 & 4 had procured 22.600 Kgs. of heroin from African Nationals and gave it to accused Nos.1 & 2 from whose possession the contraband article was seized on 20.09.2022 in Thiruvananthapuram, which is of a commercial quantity. 7. The cardinal contention of the learned Senior Counsel for the petitioner is that, there is no materials to link the petitioner’s involvement in the crime other than for the extra judicial confession made by the other _B.A.No.933/2023_ _-:8:-_ accused and certain telephonic conversations. Both the said materials are inadmissible in evidence as per the law laid down in **Tofan Singh** and **Pallulabid Ahmad Arimutta & Anr.** cases(supra). On the contrary, the respondents contend that as per the complaint laid before the jurisdictional court, in addition to the extra judicial confession, that there are statements of the two witnesses, namely LWs 19 and 20 to establish the petitioner’s complicity, the conversations between the petitioner and the African Nationals, and materials to prove that the petitioner had travelled with the accused Nos.1,2 & 4 to Mumbai and from there he accompanied them to Delhi and handed over the contraband articles to the agents of the African Nationals. The respondent has complied with the procedure under Sections 42 and 50 of the Act. 8. In **Union of India v. Md. Nawaz Khan** _B.A.No.933/2023_ _-:9:-_ ## [2021 KHC 6503] the Hon'ble Supreme Court, after considering the earlier precedents on the point, has held thus: “28. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this Court in Boota Singh v. State of Haryana.” ## 9. The above view has been followed by this Court in **Abeesh v. State of Kerala** [2022:KER 50902] ## by holding thus: “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 noncommunication 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 _B.A.No.933/2023_ _-:10:-_ 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. 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.” 10. In the light of the exposition of law in **Md. Nawaz Khan's** case and **Abeesh's** case, which I fully concur, I am of the firm view that the contention of the learned Senior Counsel for the petitioner regarding the alleged infraction of Sections 42 and 50 of the Act, which has been countered by the Standing Counsel, is a matter than can only be decided in trial and not at the stage of consideration of the bail application. On going through the materials placed on record, prima facie I am satisfied that there is substantial compliance of the above provisions. 11. It is to be remembered that, the contraband allegedly seized from the accused is of a commercial quantity. Therefore, the rigour under Section 37 of the _B.A.No.933/2023_ _-:11:-_ NDPS Act applies to the facts of the case. 12. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is apposite to reproduce Section 37, which reads as follows: “37. **Offences to be cognizable and non-bailable** .— (1) Notwithstanding anything contained in the Criminal Procedure Code, 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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” _B.A.No.933/2023_ _-:12:-_ 13. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the NDPS Act and also involving a commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the NDPS Act is subject to provisions contained under Section 439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Section 37 of the NDPS Act. 14. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the NDPS Act, the Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: _B.A.No.933/2023_ _-:13:-_ “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for 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”. ## 15. **Md. Nawaz Khan's** case, the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the NDPS Act, observed that: “23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 16. It is also well-settled that in addition to applying the rigour under Section 37 of the NDPS Act, the courts are also bound to follow the general parameters under Section 439 of the Code, while considering a bail application. _B.A.No.933/2023_ _-:14:-_ ## 17. In **Prasanta Kumar Sarkar v. Ashis** **Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 18. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar _B.A.No.933/2023_ _-:15:-_ and the materials placed on record, particularly after going through the statement filed by the Standing Counsel and also the complaint that has been filed before the jurisdictional court and on being satisfied that there has been substantial compliance of Sections 42 and 50 of the NDPS Act and, further on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the contraband is of a commercial quantity, the potential severity of the punishment that is likely to be imposed on the petitioner in the event of his conviction and the rigour under Section 37 of the NDPS Act, I do not find any reasonable grounds to hold that the petitioner is not guilty of the offences alleged against him and that he is not likely to commit a similar offence, if he is enlarged on bail. Hence, I am not convinced or satisfied that the petitioner can be released on bail. _B.A.No.933/2023_ _-:16:-_ Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/12.03.24 //True copy// P.A. To Judge