Bunash Khan v. State of Kerala

**BAIL APPL. NO. 2573 OF 2021 1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 3[RD] DAY OF JUNE 2021 / 13TH JYAISHTA, 1943** **BAIL APPL. NO. 2573 OF 2021** **CRIME NO.90/2021 OF VALLIKUNNAM POLICE STATION** ## **PETITIONER/ACCUSED:** 0 BUNASH KHAN AGED 27 YEARS BISMINA MANZIL, PALLICKAL P.O MANJADITHARA MURI, BHARANIKAVU VILLAGE, ALAPPUZHA ALAPPUZHA, PIN - 690503 BY ADVS. OMAR SALIM SRI.ABDULLA ZIYAD SHRI.SRAVAN M.S. SHRI.ARUN T. KUM. K. REMIYA RAMACHANDRAN ## **RESPONDENT/S:** 0 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 SRI AJITH MURALI-PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 2573 OF 2021 2** ## **ORDER** This application under Section 438 of the Cr.P.C is filed by the accused in Crime No.90/2021 of the Vallikunnam Police Station. The aforesaid crime was registered on 02.02.2021 under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. On 02.02.2021, during the early hours of the day, the Inspector of Police, Vallikunnam Police Station along with his party were engaged in routine checking of vehicles along the Kayamkulam-Punaloor road. A car bearing registration No.KL-29-R-111 was driven off without heeding to the directives of the police to stop the vehicle for inspection. The police followed the car and it appears that the car dashed on to a wall near a fuel pump and came to a stand still. The person who was inside the car took to his heels and made good his escape. The car was inspected and it was found that three sacks of ganja weighing 15.330 kg, 17.418 kg and 17.544 kg were kept concealed inside. Various records were found inside the vehicle and those were also seized. The accused was identified and the crime was registered. 3. The learned counsel appearing for the petitioner submitted that the petitioner has been falsely implicated in the instant crime. Though in the bail application, the petitioner admits that the vehicle which met with the accident and from which about 50 kgs of Ganja was seized belonged to him, he denies that the said vehicle was used for the transportation of ganja. The petitioner **BAIL APPL. NO. 2573 OF 2021** **3** asserts that he had met with an accident sometime in the year 2014 and had to undergo treatment at the Medical Trust Hospital, Kochi. Referring to Annexure- A3 medical records and discharge summary, which are all of the year 2014 and 2015, it is submitted that the condition of his left leg is such that he would not be in a position to run. Relying on these records, it is vehemently contended that the entire prosecution case will fall to the ground as according to the police, the driver of the car had fled immediately after the incident. Reliance is also placed on Annexure-A4 certificate issued by the consultant Orthopedic surgeon in the year 2021 advising that the petitioner will not be able to do work that requires standing or walking for long periods. It appears that the said certificate was procured after the incident in the instant case. The learned counsel would also refer to Annexure-A5 order passed by the Human Rights Commission and Annexure-A7 order passed by the Minorities Commission on 17.12.2014 and 19.10.2020 to bring home his point that the complaint lodged by the petitioner’s mother alleging false implication of the petitioner in various cases were ordered to be investigated by a superior officer. According to the learned counsel, the allegations levelled against the petitioner are false and frivolous. 4. Sri.Ajith Murali, the learned Public Prosecutor has opposed the prayer. He would contend that cogent and convincing materials have been collected by the police to connect the petitioner with the crime. According to the learned Public Prosecutor, the petitioner is a hardened criminal and he is the accused in **BAIL APPL. NO. 2573 OF 2021** **4** as many as 17 cases within the limits of Kollam and Alappuzha districts which include 2 crimes registered under the NDPS Act as well. He would contend that the identity of the petitioner is well known in the area and he was duly identified by the police on the date of incident itself. It is submitted that the medical records produced by the petitioner are of the year 2014 and it relates to a fracture sustained by him on the left leg. According to the learned Public Prosecutor, those records are thoroughly insufficient to conclude that the petitioner now has any locomotor disability or that he will not be in a position to make good his escape. The details of crimes registered in the year 2013 and thereafter are also highlighted to bring home the point that the contentions so advanced by the petitioner has no basis. It is further submitted that the petitioner’s mother used to file complaints before various forums alleging highhandedness of the police and those complaints have all been considered by the superior police officers and it was found that the allegations raised are without basis. It is further submitted that the quantity of contraband seized from the vehicle of the petitioner falls within the category of commercial quantity and the investigation is in the early stages. According to the learned Public Prosecutor, unless the applicant satisfies the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the applicant cannot be released on bail. Much reliance is placed on the **BAIL APPL. NO. 2573 OF 2021 5** decision of the Apex Court in **Union of India (UOI) v. Shri Shiv Shanker Kesari** [(2007) 7 SCC 798] to support his contentions. Reliance is also placed on a judgment of this Court in **Shaji P A v. State of Kerala** [2018(3) KLT 164] and it was argued that the restrictions provided in Section 37 of the Act in granting bail to a person accused of the offences specified therein would also apply in granting anticipatory bail under Section 438 of the Code. 5. I have considered the submissions advanced and have gone through the materials made available. 6. The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It reads thus: ## “ **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 27-A 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 **BAIL APPL. NO. 2573 OF 2021** **6** 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.” 7. Bail can be granted in a case, where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is manifest that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds”, which 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. 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also **BAIL APPL. NO. 2573 OF 2021 7** to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion. 8. The Apex Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In **Union of India v. Ram Samujh** [(1999) 9 SCC 429], the principles have been laid down in unequivocal terms: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. 9. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with a non obstante clause. The operative part of the said section is in the negative form **BAIL APPL. NO. 2573 OF 2021 8** prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. (See **State of Kerala and others v Rajesh and others** [(2020) 12 SCC 122] **.** 10. In **Durand Didier v. State (UT of Goa)** [(1990) 1 SCC 95], while speaking about the menace of Drugs , the Apex Court had observed thus: ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 11. In the case on hand, the available records would reveal that about 50 kg of ganja was seized from the car which is admittedly owned by the **BAIL APPL. NO. 2573 OF 2021 9** petitioner. In his bail application he asserts that he is quite unaware of what was loaded in the trunk of the vehicle and it is also contended that he was not in conscious possession of the contraband. He also asserts that though the vehicle belongs to him, he was nowhere in the scene of occurrence. 12. The main contention of the petitioner is that he is a disabled person and he is not capable of running due to the injury sustained by the petitioner in the year 2014. None of the medical records produced before this Court would enable this Court to come to such a conclusion. It appears that the petitioner has procured various certificates from doctors for the purpose of producing it before various authorities. Admittedly, the petitioner is a business man and it fails comprehension as to why he would procure a certificate to produce it before a non existent employer. Furthermore, the records of crimes in which he is involved makes astonishing reading. The same is extracted below for convenience. |Sl<br>No.||| |---|---|---| ||Police Station and Crime No.|Offence| |||| |||u/ss.143, 147, 148, 323, 324,<br>308 and 506(i) r/w Sec.149 of<br>lpC.| ||Kayamkulam Police Station Cr.No.1793/2015|| |1||| |||| |||| |||| ||Kayamkulam Police Station Cr.No.385/2017,|| |||u/s.27 of the NDPS Act| |2.||| |||| |||| |||| **BAIL APPL. NO. 2573 OF 2021 10** ||Kayamkulam Police Station Cr.No.623/2010,|u/s.379 red with Sec.34 of lPC| |---|---|---| |3.||| |||| |||| ||Kayamkulam Police Station Cr.No.618/2020|u/s.379 red with Sec.34 of lPC| |4.||| |||| |||| |||u/s.365 and 368 read with<br>Sec.34 of lPC| ||Nooranadu Police Station Cr.No.221/2013|| |5.||| |||| |||| |||| ||Nooranadu Police Station Cr.No.894/2013|u/s.420 read with Sec.34 of lPC| |6.||| |||| |||| |||u/s.364A read with Sec.34 of<br>lPC| ||Nooranadu Police Station Cr.No.946/2013|| |7.||| |||| |||| |||| |||u/ss. 143, 147, 148, 452, 324,<br>506(ii) and 109 read with<br>Sec.149 of lPC and u/s.27 of<br>the Arms Act.| ||Kurathikadu Police Station Crime No.465/2013|| |8.||| |||| |||| |||| ||Kurathikadu Police Station Crime No.884/2016|u/s.394 read with Sec.34 of lPC| |9.||| |||| |||| |||u/ss.143, 147, 294(b), 323, 341<br>and 506(i) read with Sec.149 of<br>lPC| ||Kurathikadu<br>Police<br>Station<br>Crime<br>No.1693/2017|| |10.||| |||| |||| |||| ||Karunagappally Police Station<br>Crime<br>No.1270/2015|| |||u/s 420 IPC| |11.||| |||| |||| |||| ||Ernakulam South Police Station<br>Crime<br>No.108/2017|| |||u/s 461, 380 and 457 IPC| |12.||| |||| |||| |||| |||u/ss 395 and 506(ii) read with<br>Sec.34 IPC and u/s 27 of Arms<br>Act| ||Vallikunnam<br>Police<br>Station<br>Crime<br>No.160/2013|| |13.||| |||| |||| **BAIL APPL. NO. 2573 OF 2021** **11** ||Vallikunnam<br>Police<br>Station<br>Crime<br>No.863/2013|| |---|---|---| |||u/s 511 of 394 r/w Sec.34 IPC| |14.||| |||| |||| |||| ||Vallikunnam<br>Police<br>Station<br>Crime<br>No.1286/2018|| |||u/s 20(b) (II) B of NDPS Act.| |15.||| |||| |||| |||| ||Mavelikara Police Station<br>Crime No.<br>2261/2019|u/ss.120(B), 130, 216, 225(B) of<br>IPC| |16.||| |||| |||| |||u/s.379, 411 and 201 read with<br>Sec.34 of IPC| ||Aran mula Police Station Crime No.608/2010|| |17||| |||| |||| From the details of the crimes it is apparent that numerous crimes were registered after 2014 and this would contradict the case of the petitioner that he is more or less immobile and disabled after 2014. 13. It is true that the mother of the petitioner had filed certain complaints before the Human Rights Commission as well as the Minority Commission. As rightly submitted by the learned Public Prosecutor, the lodging of complaints stating one reason or the other appears to be the modus operandi adopted by the petitioner and his mother to keep the police at arm's length. ## 14. In **Dr. Naresh Kumar Mangala v Anita Agarwal and Others** [2020 SCC Online SC 1031], the Apex Court had occasion to reiterate the principles that are to be borne in mind while considering an application for anticipatory bail. It was observed as follows : **BAIL APPL. NO. 2573 OF 2021** **12** 17. The facts which must be borne in mind while considering an application for the grant of anticipatory bail have been elucidated in the decision of this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra8 and several other decisions. The factors to be considered include: “112. […] - (i) the nature and gravity of the accusation and the exact role of the accused; - (ii) the antecedents of the applicant including whether the accused has previously undergone imprisonment on a conviction by a court in respect of a cognizable offence; (iii) the possibility of the applicant fleeing from justice; - (iv) the likelihood of the accused repeating similar or other offences; - (v) whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting them; - (vi) the impact of the grant of anticipatory bail particularly in cases of magnitude affecting a large number of people; - (vii) The court must carefully evaluate the entire material against the accused. The court must also clearly comprehend the exact role of the accused in the case. Cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should be considered with even greater care and caution because over implication in such cases is a matter of common knowledge and concern; - (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; - (ix) the reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant; - (x) frivolity in prosecution should always be considered and it is **BAIL APPL. NO. 2573 OF 2021** **13** only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” 18. Adverting to the above observations, in Jai Prakash Singh v. State of Bihar9, this Court held: “19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons… Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been roped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [(2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [(2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal [(2008) 13 SCC 305) ” 19. In the recent decision of the Constitution Bench in Sushila Aggarwal v. State (NCT of Delhi),10 the considerations which ought to weigh with the Court in deciding an application for the grant of anticipatory bail have been reiterated. The final conclusions of the Court indicate that: - “92.1… The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. **BAIL APPL. NO. 2573 OF 2021** **14** - 92.3…While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. - 92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.” 15. Having carefully considered the materials which are made available, I am of the prima facie view that there are credible materials linking the petitioner with the crime. There are no substantial probable causes for believing the version of the petitioner at this stage. I hold that the petitioner has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. Moreover, the investigation is at a preliminary stage and I find no reason to arm the petitioner with an order of anticipatory bail. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** **ps/3/6/2021**