Junaid v. Circle Inspector of Excise, Tirur (Eco), Malappuram District; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941** ## **Bail Appl..No. 8770 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRMP 1231/2018 of SPECIAL COURT (NDPS ACT CASES), VADAKARA** ## **CRIME NO. 33/2018 OF Kuttippuram Excise Range Office , Malappuram** ## **PETITIONER/S:** **JUNAID AGED 22 YEARS S/O. ABDUL RAHIMAN, KARATT HOUSE, (FUDHARABEEDU, KONNAKKATTE) VENMATHI, VEERAJPETTA, KOORG DISRICT.KARNATAKA.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/S:** **1 THE CIRCLE INSPECTOR OF EXCISE ECO, TIRUR, MALAPPURAM DISTRICT.** **2 STATE OF KERALA, (RESPONDENTS 1 AND 2 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM , COCHIN- 682 031)** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== B.A.No. 8770 of 2018 ================== Dated this the 11[th] day of April, 2019 **O R D E R** The petitioner is accused No.2 in Crime No.33/2018 of Excise Range Office, Kuttippuram, which has been registered for offences punishable under Sec.22(c) read with Sec. 29 of the Narcotic Drugs & Psychotropic Substances (NDPS) Act 1985. 2. The brief of the prosecution case is that on 1.12.2018 at about 10.30 a.m., the petitioner (A-2) along with A-1 had committed the offences punishable under Sec. 22(c) read with Sec.29 of the NDPS Act as they were found in possession of 520.800 gms. Nitrazepam tablets in pursuance of the conspiracy between them and that the scene of occurrence is near Kuttippuram bus stand at Kuttippuram. The petitioner (A-2) was arrested from the spot on the same day ( 1.12.2018) and has been under judicial custody since then. The plea of the petitioner through the learned counsel is that he is completely innocent of the charges and that the abovesaid allegations have been falsely foisted on him and that even going by the prosecution case, only 10 Nitrazepam tablets have been seized from the possession of the petitioner (A-2) and that its total weight is below the small quantity and therefore, he is entitled to grant of bail as of B.A.No. 8770/18 - : 3 :- right. The plea for grant of regular bail has been seriously opposed by the learned Prosecutor. 3. From the prosecution records, especially the seizure mahzar, it can be seen that the specific case of the prosecution is that the petitioner (A-2) was found holding a bag in his hand and was found removing one strip of tablets from the bag and after putting the same inside the pocket of his pants, the petitioner (A-2) had handed over the bag to A-1 and that this clearly shows that the connection of the petitioner (A-2) with the bag which contained Nitrazepam tables in commercial quantity. Further it is the case of the prosecution is that the bag which was so recovered from A-2 contains about 520.800 gms. of Nitrazepam tablets and that the total weight of the drugs recovered from the petitioner (A-2) and A-1 would exceed the limit of commercial quantity and hence the petitioner is not entitled for bail as of right and that in view of the gravity and seriousness of the offences, this is not a fit case to release the petitioner (A-2) on regular bail, etc. 4. Sri.Sunny Mathew, learned counsel appearing for the petitioner (A-2) would point out that the main material relied on by the prosecution to implicate the petitioner for having nexus with A-1 for possessing commercial quantity of drugs is the seizure mahazar B.A.No. 8770/18 - : 4 :- that the petitioner (A-2) was found holding a bag in his hand and had removed one strip of tablet from the bag and thereafter had handed over the bag to A-1, etc. That apart from the abovesaid self serving and unilateral case of the prosecution, the only other material relied on by the prosecution is the statements said to have been recorded from the accused persons by the authorised officer concerned under Sec. 67 of the NDPS Act. The petitioner's counsel would point out that the abovesaid materials based on the statements said to have been given by the accused persons under Sec. 67 of the NDPS Act to the authorised officer concerned, are to be eschewed from consideration as it is inadmissible. In that regard, it is pointed out by the petitioner's counsel that in the decisions in _**Ram Singh V. Central Bureau of Narcotics**_ [2011 (11) SCC 347] and _**Kanhaiyalal v. UOI**_ [2008 (4) SCC 668 ] the Apex Court has held that confession statement recorded by the authorised officer under Sec. 67 of the NDPS Act cannot be treated as statement given to a Police officer and that such confession statement is admissible in evidence. However, the Apex Court in subsequent decisions as in _**Noor Aga V State of Punjab**_ [2008 (16) SCC 417, para 76] has held that the officer empowered under Sec. 53 of the NDPS Act should be deemed to be a Police officer and further in the case in B.A.No. 8770/18 - : 5 :- _**Nirmal Singh Pehlwan v Inspector Customs**_ [2011 (12) SCC 298] the Apex Court has held that in _**Noor Aga case**_ (Supra) the Division Bench of the Apex Court has doubted the dictum laid down in _**Kanhaiyalal case**_ supra. That later in _**Tofan Singh V. State of Thamilnadu**_ [(2013 (16) SCC 31] the Apex Court has noted the abovesaid divergence in the views of its various benches and has referred the issue for consideration of a Larger Bench for resolution of the abovesaid issues and for decision on the point as to whether confession statement made to such officers under Sec.67 of the NDPS Act will be admissible or not. 5. It is pointed out that the Larger Bench of the Apex Court has not rendered its final verdict in the matter for resolution of the abovesaid issues. Further it is pointedly urged by the learned counsel for the petitioner that since the resolution of the divergent views of the Apex Court is pending consideration before the Larger Bench of the Apex Court, this Court could certainly at least provisionally follow the view that is in favour of the accused as it is a golden rule of construction in criminal matters that where two views are plausible, then the view that is in favour of the defence/accused should be adopted taking into consideration the fundamental principle of presumption of innocence of an accused until he is proved guilty. B.A.No. 8770/18 - : 6 :- 6. Sri.Amjad Ali, the learned Prosecutor appearing for the respondent State would point out that in a matter like the present one involving bail application, this Court can certainly evaluate the scenario based on the prosecution records and since the prosecution records clearly indicate that the petitioner (A-2) was seen taking tablets from the bag and then had handed over the same to A-1, etc. then such factual materials would suffice to adjudge on the matters in bail applications and that this Court need not get into complex and vexed task of resolving the divergent views so as to follow the view in favour of the accused, as contended by the petitioner as those are all aspects which are to be decided exclusively by the Apex Court and that such an approach as contended by the prosecution is certainly justifiable in a bail application like the present one, which is governed strictly by the provisions in Sec.37 of the Act. 7. The learned Prosecutor has taken this court's attention to a judgment of the Rajastan High Court in _**Gunjan Dudani v. UOI**_ [2018 KHC 2740 = 2018 Crl.L.J.NOC 143, paras 13 & 14, etc.], wherein it has been held that at the stage of consideration of bail application, in an offence under the NDPS Act, the court need to take into account the totality of the facts and attendant circumstances that emerged from the prosecution case and that at that stage, the bail B.A.No. 8770/18 - : 7 :- court is not expected to consider high degree of certainty about the involvement of the accused persons in the commission of the offences and further that at the stage of the consideration of the bail application, the bail court cannot ignore or brush aside the revelations made by the accused persons under Sec.67 of the NDPS Act which show their involvement in commission of offences. It is pointed out by the learned Prosecutor that the abovesaid view has been rendered by the Rajasthan High Court in _**Gunjan Dudani's case**_ supra [2018 KHC 2740 = 2018 Crl.L.J.NOC 143] after specifically taking note of the aspect that the resolution of the divergent views of the various Benches of the Apex Court is now pending consideration of the Larger Bench in _**Tofan Singh's case**_ supra [(2013 (16) SCC 31], etc. 8. After hearing both sides, this Court is of the considered view that it has to be borne in mind that what is now under consideration is a bail application under Sec.439 of the Code of Criminal Procedure, 1973 and moreover, the investigation in the case has not so far been completed. Therefore, without overruling the abovesaid contentions of the petitioner, this Court is of the view that at this stage of the matter, especially when the investigation has not so far been completed in its entirety, this Court need to examine only B.A.No. 8770/18 - : 8 :- the prosecution case as emerging from the prosecution records like seizure mahazar. Those records would clearly point to the case of the prosecution that the petitioner (A-2) was found holding a bag in his hand and was found removing one strip of tablet from the bag and after putting the same inside the pocket of his pants, the petitioner A-2 had handed over the bag to A-1. So this prima facie shows that the nexus of the petitioner (A-2) with the bag which was handed over to A-1 which contained Nitrazepam tables in commercial quantity. On that premise, this Court is not now inclined to accede to the plea of the petitioner for regular bail at this stage, taking into account the seriousness and gravity of the offences alleged against the petitioner and also the crucial fact that the investigation in the case has not so far been completed and also taking into account the parameters in Sec.37(1)(b) of the NDPS Act. The contentions of the petitioner are left open to be decided later at the appropriate stage. With these observations and directions, the above application for grant of regular bail will stand dismissed. ## **Sd/-** sdk+ **ALEXANDER THOMAS, JUDGE** B.A.No. 8770/18 - : 9 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **A TRUE COPY OF THE ORDER DATED 15.12.2018 PASSED BY THE COURT OF THE SPECIAL JUDGE (NDPS ACT CASES), VATAKAR IN CRL.M.P.NO. 1231/2018**