Jabir Mullali v. Intelligence Officer, Narcotics Control Bureau, Sub Zone, Cochin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** ## **Bail Appl..No.1577 OF 2020** **(O.R.NO.4/2019 OF NARCOTIC CONTROL BUREAU, SUB ZONE, COCHIN) PETITIONER/ACCUSED:** **JABIR MULLALI AGED 23 YEARS S/O. ABDUL AZEES, MULLALI HOUSE, PONNANKAI, AREEKKARA, KUNHIPALLI, KOTTALI P.O. KANNUR DISTRICT.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT/COMPLAINANT & STATE:** **THE INTELLIGENCE OFFICER NARCOTICS CONTROL BUREAU, SUB ZONE, COCHIN 682 018, REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI 31.** **BY ADV. SRI.MVS.NAMBOOTHIRY, SC** ## **OTHER PRESENT:** ## **SRI.AMJAD ALI SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28.5.2020, ALONG WITH Bail Appl..2891/2020, THE COURT ON 05.06.2020 PASSED THE FOLLOWING:** BA 1577 & 2891/20 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** **Bail Appl..No.2891 OF 2020** **(O.R.NO.4/2019 OF NARCOTIC CONTROL BUREAU, SUB ZONE, COCHIN) PETITIONER/A2:** **MUHAMMED ASARUDHEEN, AGED 26 YEARS S/O.ABDUL RAHEEM KASIMKUNJU, R/O THADATHARIKATHU HOUSE, NOORAMTHODU P.O., KUNTHALAMTHERU, ADIVARAM, KOZHIKODE DISTRICT, PIN - 673 586.** ## **BY ADV. SRI.SAM ISAAC POTHIYIL** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN - 682 031.** **2 INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU, SUB-ZONE, COCHIN - 682 037.** **R2 BY ADV. SRI.MVS.NAMBOOTHIRY** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28.5.2020, ALONG WITH Bail Appl..1577/2020, THE COURT ON 05.06.2020 PASSED THE FOLLOWING:** BA 1577 & 2891/20 3 ASHOK MENON, J. -----------------------------------BA Nos.1577 and 2891 of 2020 ------------------------------------Dated this the 5[th] day of June, 2020 ## C O M M O N O R D E R Applications under section 439 CrPC for regular bail. 2. Petitioner in BA No.1577/2020 is the first accused (A1) and the petitioner in BA No.2891/2020 is the second accused (A2) in OR No.4/2019 of the Narcotic Control Bureau, Sub Zone, Kochi ['NCB', for short]. Applications are filed by the accused separately under Section 439 Cr.PC seeking bail. They have allegedly committed offences punishable under Section 8(C) read with Sections 22(C), 23(C), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ['NDPS Act', for short]. 3. The facts in brief are thus: On 2.9.2019, the NCB received information from the CISF Control Room attached to the Calicut International Airport that during the security check, some suspicious BA 1577 & 2891/20 4 items suspected to be narcotic drug was detected from a laptop bag carried by A1 bound to Doha by Qatar Airways Flight. The NCB officials were directed to examine the contraband and to take appropriate action. Accordingly, the Intelligence Officer of the NCB proceeded to the Airport and found that A1 was detained by the CISF officials. Two packets covered in black polythene bags and plastered with brown cello-tape were found in the laptop bag in his possession. On opening those packets, after complying with the provisions of Section 50 of the NDPS Act, it was found containing a white coloured crystal substance, confirmed to be 240 grams and 250 grams, respectively of methamphetamine, a psychotropic substance, on being tested by the officers using the standard testing kit for analysing the sample. The seizure was effected in the presence of the Assistant Commandant of the CISF and samples were drawn, collected and sealed, in accordance with the law. In the statement of A1 recorded under Section 67 of the NDPS Act he confessed that he was provided with air-ticket for travel to and fro by A2, who had made BA 1577 & 2891/20 5 negotiations with him. He was however made to believe that he was carrying some chemical to be used for the purpose of processing Gold. A1 was immediately arrested and remanded to judicial custody. 4. Thereafter, on the basis of the disclosure made by A1, notice was issued to A2 to appear before the NCB. Though notice was served on his father, he did not appear or respond. Pursuance to a surveillance operation, A2 was arrested on 3.10.2019. His statement was recorded under Section 67 of the NDPS Act in which he confessed that the contraband was entrusted to him by one Siraj V.M. asking him to be a mule to take the contraband to Qatar. Rs.70,000/- was agreed to be handed over to him and Rs.40,000/- was transferred through Google Pay. A2 arranged A1 to be the mule, since he was in need of money. 5. A complaint has been filed against the accused on 26.2.2020 before the jurisdictional court. 6. A1 filed two bail applications as BA No.60/2020 and BA No.1005/2020, both of which were dismissed by this Court vide orders dated 24.1.2020 and BA 1577 & 2891/20 6 25.2.2020 respectively, copies of which are produced along with BA No.1577/2020 filed by him as Annexures-I and II. 7. A2 filed Crl.MP No.924/2019 before the Special Court for NDPS Act Cases, Manjeri and the same was dismissed on 4.11.2019 vide Annexure-A2 order. Thereafter, he approached this Court and filed BA No.8431/2019 which too was dismissed on 11.12.2019 vide Annexure-A3 order appended to his bail application. Soon thereafter, A2 filed another bail application before this Court as BA No.510/2020 which was dismissed as withdrawn vide Annexure-A4 order. 8. Both the accused have now approached this Court again seeking bail. A1 contends that he has already undergone the statutory period of 180 days and therefore, he is entitled to mandatory bail under Section 167(2) Cr.PC. It is also contended that he was actually taken for a ride by A2 and was made to believe that the packets entrusted to him contained harmless chemicals for the purpose of processing Gold and the laptop bag containing the contraband was handed BA 1577 & 2891/20 7 over to him by A2 and he knew nothing about what was inside it. He put some of his personal belongings also into that bag and carried it. It is also contended that the mandatory provisions under Section 50 of the NDPS Act has not been complied with because the CISF officers who had detected the contraband were not authorised officers under Section 42 of the NDPS Act to make a seizure and by the time the NCB officials arrive at the Airport, the CISF officials had already confirmed that A1 was carrying narcotic drug and therefore, seizure is not good in law and for that reason, A1 cannot be implicated in this case. 9. Heard Adv. Sri. T.G.Rajendran, learned counsel appearing for the petitioner in BA No.1577/2020 (A1) and Adv. Sri. Sam Issac Pothiyil, learned counsel appearing for the petitioner in BA No.2891/2020 (A2). The public prosecutor and the standing counsel for the NCB, Adv. Sri M.V.S Namboothiri were also heard. Perused records. 10. Learned counsel appearing for the petitioner in BA No.2891/2020 (A2), argues that A2 was taken into BA 1577 & 2891/20 8 custody in the presence of his father, from the hospital where his wife had delivered a child, and he did not get an opportunity to even properly have a glance at his new born child before he was taken into custody. The learned counsel would contend that A2 may be at least granted temporary bail for a few days, so that he could be with his loved ones during the present pandemic situation. 11. The quantity involved is commercial and the applicants would have to satisfy the cumulative twin parameters laid down under Section 37(1)(b)(ii) of the NDPS Act to get enlarged on bail. This Court had in the detailed order at Annexure-A3 pertaining to A2 and Annexures-I and II pertaining to A1 considered the decisions of the Honourable Supreme Court in Union of India v. Shri.Shiv Shankar Kesari [(2007) 7 SCC 798] and State of Punjab v. Baldev Singh [AIR 1999 SC 2378] to arrive at a conclusion that the applicants are not entitled to bail, in view of the provisions under Section 37(1)(b)(ii) of the NDPS Act, which specifically states that bail can be granted in a case BA 1577 & 2891/20 9 where there are reasonable grounds of believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. In a recent decision of the Hon'ble Supreme Court in State of Kerala,etc; v. Rajesh,etc; [2020(1)KHC 557] it has been reiterated that jurisdiction of courts to grant bail in NDPS cases is circumscribed by provisions under Section 37 of the NDPS Act, which is sine qua non for granting bail to the accused. 12. In the instant case pertaining to A1 and A2, it is adequately clear that A1 was being used as a mule. He was provided with air-ticket and money by A2. He cannot pretend to be ignorant of what he was carrying, in view of the presumptions under Section 35 of the NDPS Act which casts a reverse burden on the accused. The culpable mental state can only be proved to be otherwise by adducing rebuttal evidence during trial. At the stage of bail, the presumptions will have to be drawn against the accused. It is also pertinent to note that both the accused had given confession statements under Section 67 of the NDPS Act, BA 1577 & 2891/20 10 which have not so far been retracted and could definitely be used as corroboration for the purpose of finding of guilt against them. 13. The contention of Adv.T.G.Rajendran that A1 is entitled to statutory bail will not lie, in view of fact that the complaint was already filed by the prosecution on 26.2.2020, for which the prosecution had time till 29.2.2020 as he was arrested on 02.09.2019. This Court had already observed relying on the decision in Beldev (supra), that drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities, including terrorist activities. The bail applications filed by the accused were dismissed twice and I find no reason whatsoever to entertain those applications again. Deprivation of personal liberty by procedure established by law and detention of accused in custody for a non bailable offence during pendency of trial in accordance with law cannot be questioned as being violative of Article 21 of the Constitution, since it is authorised by law. BA 1577 & 2891/20 11 Successive bail applications cannot be entertained, although resjudicata is not applicable to criminal proceedings in the strict sense, the principles would indirectly be attracted, and unless there are change in circumstances second bail petition cannot be entertained (see Kalyan Chandra Sarkar v. Pappu Yadav [2005 KHC 604] ). There is absolutely no change of circumstances in this case which enables the court to take a different decision. 14. Final report has already been filed and I believe that considering the fact that the applicants are in detention, the trial court would make earnest attempt to dispose of the case against them, as expeditiously as possible. Both the Bail Applications are therefore dismissed. ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** jg