JAMSHERALI v UNION OF INDIA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **Bail Appl..No.7887 OF 2019** **AGAINST O.R.NO.38/2019 OF CUSTOMS AIR INTELLIGENCE UNIT, CIAL, NEDUMBASSERY** ## **PETITIONERS/ACCUSED NO.3:** **JAMSHERALI** **AGED 24 YEARS S/O.ABDU KARIM, PUNNAKKAPARAMBIL HOUSE, ANAKAYAM POST, MUNDUPARAMBU, MALAPPURAM DISTRCT-676509.** ## **BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY** ## **RESPONDENTS:** **1 UNION OF INDIA, REPRESENTED BY THE STANDING COUNSEL, CUSTOMS AIR INTELLIGENCE UNIT, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 SUPERINTENDENT OF CUSTOMS AIR INTELLIGENCE UNIT, COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERRY, REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **SRI SASTHAMANGALAM S AJITHKUMAR -PP CUSTOMS** SRI.B.JAYASURYA SR.PP **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON 28.11.2019 PASSED THE FOLLOWING:** B.A.No.7887/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ B.A.No.7887 of 2019 -----------------------------------------------Dated this the 28[th] day of November, 2019 ## **O R D E R** This is an application for bail filed under Section 439 Cr.P.C. 2. The petitioner is the third accused in the case which is registered as O.R.No.38/2019 of the Air Intelligence Unit, Nedumbassery under Sections 23(c), 27A, 28 and 29 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 3. On 26.01.2019, at about 23.25 hours, the Air Intelligence Unit of Cochin Customs got information from the security staff of the Cochin International Airport that they had seen some images suspected to be of a narcotic substance in a blue colour trolley bag, which belonged to the first accused. Thereafter, the customs officers of the Air Intelligence Unit intercepted the first accused, who was bound to travel to Doha. B.A.No.7887/2019 3 The blue trolley bag, which belonged to him, was searched and 1602 grams of hashish was seized from it and he was arrested. 4. The statement of the first accused was recorded under Section 67 of the Act on 27.01.2019. His statement ultimately led to the arrest of accused 2 and 4 to 6 in the case, who had allegedly made arrangements for his journey to Doha with the trolley bag containing the hashish. 5. The statement of the fifth accused revealed that he had asked the sixth accused, an autorickshaw driver, to drop the first accused at the airport. The statement of the sixth accused was recorded on 19.06.2019. His statement revealed that, as per the direction given by the fifth accused, he dropped the first accused at the airport on 26.01.2019, after collecting the flight ticket, visa and the trolley bag from the third accused. 6. The petitioner/third accused appeared before the Superintendent of Customs as per the direction given by this Court and his statement was recorded. His statement revealed that he had handed over the trolley bag and visa to the sixth accused. On 30.06.2019, the petitioner was arrested. B.A.No.7887/2019 4 Subsequently, the statement of the petitioner was again recorded and it revealed that it was the seventh accused, who had handed over the trolley bag containing the hashish to him. 7. The petitioner had earlier filed applications before this Court for granting bail to him. The application for bail filed by him as B.A.No.6106/2019 was dismissed by this Court as per Annexure-A5 order. The second application for bail filed by the petitioner before this Court as B.A.No.7448/2019 was dismissed by this Court on 24.10.2019 as per Annexure-A6 order. This is the third application for bail filed by the petitioner before this Court. It was filed by him on 30.10.2019. 8. I have heard learned counsel for the petitioner and also the learned Special Public Prosecutor for the Cochin Customs. I have also perused the case file, which was produced by the learned Special Public Prosecutor in the applications for cancellation of bail granted to some other accused in this case. 9. Learned counsel for the petitioner contended that all other accused in the case, except the seventh accused, have been released on bail by the Court of Session, Ernakulam. B.A.No.7887/2019 5 Learned counsel has pointed out that, even the first accused, from whose possession the hashish was allegedly seized, has been released on bail by the Court of Session. Therefore, learned counsel would submit that there is no sufficient ground for denying the same privilege to the petitioner also, who is only the third accused in the case. 10. Learned Special Public Prosecutor has opposed the application for bail. Learned Special Public Prosecutor has contended that the petitioner had played an important role in making available the hashish which was found in the possession of the first accused. 11. Learned Special Public Prosecutor would contend that there are sufficient materials against the petitioner to find him guilty of the offences alleged against him. It is contended by him that, unless the court is satisfied with regard to the twin conditions mentioned under Section 37(1)(b) of the Act, the prayer for granting bail to the petitioner cannot be allowed. 12. There is no dispute with regard to the fact that 1602 grams of hashish constitutes commercial quantity as prescribed B.A.No.7887/2019 6 under the Act. 13. Merely for the reason that the other accused in the case have been granted bail, the petitioner is not entitled to be released on bail. What is relevant is the nature of accusation against each accused and his role in the alleged incident. What is relevant and material is not the rank of an accused but his role in the commission of the offence. If the role of the petitioner is found to be similar to that of the other accused, the question of granting bail to him would arise consideration on the ground of rule of parity. 14. Section 37 of the Act reads as follows: ## _“_ _**37. Offences to be cognizable and nonbailable**_ - _(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 -_ B.A.No.7887/2019 7 _(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.”_ 15. A plain reading of Section 37 of the Act would show that no person accused of an offence punishable under Section 19 or Section 24 or Section 27A of the Act and also for offences involving commercial quantity shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application for bail. When the Public Prosecutor opposes the application, in order to grant bail, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit B.A.No.7887/2019 8 any offence while on bail. The limitations in granting bail specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force, on granting of bail. Section 37 of the Act curtails the freedom of the Court in granting bail and it creates restrictions on the power of the Court to release a person accused of the offences specified under clause (b) of sub-section (1). 16. Apart from giving an opportunity to the Public Prosecutor to oppose the application, satisfaction of the court with regard to two matters is mandatory before granting bail to a person who is accused of the offences specified under clause (b) of sub-section (1) Section 37 of the Act. They are (i) reasonable grounds for believing that the accused is not guilty of the alleged offence and (ii) he is not likely to commit any offence while on bail. These two conditions are cumulative and not alternative. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. B.A.No.7887/2019 9 17. The satisfaction contemplated, regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the Act. It means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both aspects, as noted above, is sine qua non for granting bail to a person who is accused of the offences specified under clause (b) of sub-section (1) of Section 37 of the Act. 18. However, while considering an application for bail with reference to Section 37 of the Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed the offence alleged against him. What is to be seen is B.A.No.7887/2019 10 whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. 19. The aforesaid principles have been laid down by the Supreme Court in **Union of India v. Shiv Shanker Kesari : (2007) 7 SCC 798, Union of India v. Rattan Mallik : (2009) 2 SCC 624 and Union of India v. Niyazuddin : AIR 2017 SC 3932** . 20. In the instant case, the crux of the allegations against the petitioner is that he had arranged the flight ticket and visa for the first accused to go to Doha and that he had entrusted the trolley bag, which contained the hashish, to the sixth accused for the purpose of giving it to the first accused. 21. If the aforesaid allegations are accepted as true, it would mean that the petitioner has committed an offence punishable under Section 29 of the Act. B.A.No.7887/2019 11 22. Now, what are the materials available against the petitioner to prove that he has committed the acts alleged against him? The statement of the sixth accused as well as the statements of the petitioner himself, recorded under Section 67 of the Act by the investigating officer, constitute almost the entire basis of the prosecution case against the petitioner. 23. The statement of the sixth accused recorded under Section 67 of the Act would show that that the petitioner was the person who entrusted him the trolley bag which contained the hashish. His statement would also show that the petitioner had given him the visa and the flight ticket for the journey of the first accused. 24. Further, there are two statements of the petitioner recorded by the investigating officer. One of the statements was recorded while the petitioner was in judicial custody. In the statement given under Section 67 of the Act on 30.06.2019, the petitioner had revealed that it was the seventh accused who had entrusted him the trolley bag. According to the petitioner, the seventh accused had told him that the trolley bag contained B.A.No.7887/2019 12 perfume. There is also the statement of the petitioner that he tried to open the trolley bag but he could not open it as it was number locked. There is also the statement of the petitioner that he had arranged visa for the first accused through a travel agency. According to the petitioner, he had done such acts at the instance of one Yasif who was abroad. When the petitioner was questioned subsequently, while he was in jail, he identified the photograph of the seventh accused as the person who entrusted him the trolley bag. 25. The statement given by the petitioner under Section 67 of the Act has to be considered by the court in its entirety. It will not be proper to use only the incriminating part of the statement and discard the rest of the statement. The statement given has to be read as a whole. In the instant case, according to the petitioner, he had believed that the trolley bag, entrusted with him by the seventh accused, contained perfume. According to the petitioner, he even tried to open the trolley bag but he could not do it as it was number locked. He has denied having given any flight ticket to the sixth accused for the journey of the B.A.No.7887/2019 13 first accused. Even if the entire statement of the petitioner is accepted, it cannot be found that he is the person who arranged the hashish for exporting it through the first accused. He is only a person who had collected it from the seventh accused and entrusted it with the sixth accused for handing over it to the first accused. There is no material to show that the petitioner knew that the trolley bag contained hashish. 26. The questions, whether an officer investigating the matter under the Act would qualify as a police officer or not and whether the statement recorded under Section 67 of the Act would be admissible in evidence or not, have been referred to consideration by a larger Bench of the Supreme Court (See **Tofan Singh v. State of Tamil Nadu : (2013) 16 SCC 31** ). Of course, till the decision of the larger bench of the Apex Court comes, it has to be found that the statement of a person under Section 67 of the Act is admissible in evidence. Yet, confession of a co-accused is a very weak type of evidence. Without any materials to corroborate the statements of the accused and the co-accused recorded under Section 67 of the Act, it may not be B.A.No.7887/2019 14 possible to find an accused guilty of an offence under the Act (See **Mohammed Fasrin v. State : AIR 2019 SC 4427** ). 27. In the aforesaid circumstances, I am of the view that there are reasonable grounds for believing that the petitioner, who is the third accused in the case, is not guilty of the offence alleged against him. The prosecution has no case that he has got any criminal antecedents. The prosecution has no case that he had earlier involved in any offence under the Act. In such circumstances, I am also of the view that, if the petitioner is released on bail, he is not likely to commit any offence under the Act, while on bail. 28. At this juncture, it is to be noted that the complainant had filed applications before this Court for cancellation of the bail granted to accused 1, 2 and 4 to 6 by the Court of Session, Ernakulam. The aforesaid applications have been dismissed by this Court as per the order dated 20.11.2019. 29. The petitioner was arrested on 30.06.2019 and since then he has been in custody. Learned Special Public Prosecutor has submitted that the complaint against the accused has been B.A.No.7887/2019 15 ## filed in the competent court. 30. In the aforesaid circumstances, I find that bail can be granted to the petitioner on stringent conditions. 31. In the result, the petition is allowed. The petitioner shall be released on bail on the following conditions: i) The petitioner shall execute a bond for Rs.1,00,000/(Rupees one lakh only) with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned. ii) The sureties of the petitioner shall produce the original documents relating to their properties to prove their solvency, along with attested photocopies of such documents. The original documents shall be returned to the sureties by the court after verification. iii) The petitioner shall surrender his passport in the jurisdictional court concerned. If he has no passport, he shall file an affidavit to that effect in the aforesaid court. iv) The petitioner shall not leave the State of Kerala without the permission of the jurisdictional court till the trial of the case is over and the case against him is disposed of. B.A.No.7887/2019 16 v) The petitioner shall not, in any manner, intimidate or influence the prosecution witnesses. vi) The petitioner shall not involve in any offence under the N.D.P.S Act while he is on bail in this case. vii) If the petitioner violates any of the conditions of bail, the jurisdictional court is at liberty to cancel the bail granted to him by this Court, without any further orders of this Court, but in accordance with law. **==> picture [39 x 13] intentionally omitted <==** **R.NARAYANA PISHARADI, JUDGE** jsr/27/11/2019 True Copy PS to Judge