Liju Oommen v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946** **BAIL APPL. NO. 1473 OF 2024** **CRIME NO.1479/2020 OF Mavelikkara Police Station, Alappuzha AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.4092 OF 2022 OF HIGH COURT OF KERALA** ## **PETITIONER/S:** **LIJU OOMMEN, AGED 46 YEARS, S/O K.THOMAS, EBENEZER PUTHAN VEEDU THEKKEKARA VILLAGE, MAVELIKARA, ALAPPUZHA DISTRICT, PIN - 690101** **BY ADVS. V.VIJITHA HARISHMA P. THAMPI** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 STATION HOUSE OFFER, MAVELIKARA POLICE STATION, ALAPPUZHA DISTRICT, PIN – 690101.** **BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION ADDL. STATE PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI. C K SURESH (SR PP)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A. No.1473/2024 -2- ## **O R D E R** The petitioner is the 1[st] accused in Crime No.1479/2020 of Mavelikkara Police Station, Alappuzha District alleging commission of offences under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (In short 'the NDPS Act), Sections 55 (g) and 8 (1) and (2) of the Kerala Abkari Act and Section 6 read with Section 24 of the Cigarettes and Other Tobacco Products Act, 2003. This is the third bail application filed by the petitioner. 2. The case of the prosecution is that the 2[nd] accused in the case had taken on rent a house from where 28.500 Kg of Ganja, 4.5 litres of arrack, 30 litres of wash and 1785 packets of Hans were recovered at about 3.40 p.m. on 28-12-2020. Based on the information given by the 2[nd] accused (a lady) the petitioner was arrayed as the 1[st] accused as the prosecution had recovered credible material to suggest that the petitioner was the kingpin of the entire operation and he had arranged for the house to be taken on rent and was a frequent visitor to the house in question. A car belonging to the petitioner was also found at the house and certain quantity of contraband was also recovered from it. 3. While considering B.A No.1144/2022 filed by the petitioner I had rejected the bail application after taking note of the submission of the learned B.A. No.1473/2024 -3- Public Prosecutor that the petitioner was involved in 35 other cases, the details of which were set out in the order of the learned Sessions Judge which was on record in that case. (Annexure-A2 in BA No.1144/2022). I also took note of the submission of the learned Public Prosecutor that the prosecution had recovered several communications between the petitioner and the 2[nd] accused regarding the contraband and also the submission that there are statements recorded from the neighbours that the petitioner / 1[st] accused was responsible for bringing the contraband to the house in question. It was also the submission of the learned Public Prosecutor that, at the time of arrest the petitioner was carrying two fake Aadhaar IDs and that on four occasions, proceedings under the Kerala Anti-Social Activities Prevention Act had been initiated against the petitioner. Considering the above contention and also the provisions of Section 37 of the NDPS Act, B.A No.1144/2022 was dismissed through Annexure-A5 order dated 18-02-2022. 4. The petitioner filed a second bail application as B.A No.4092/2022. That bail application was also dismissed by Annexure-A6 order dated 05-01-2023 finding as under:- _“4. Having heard the Learned Senior Counsel appearing for the petitioner and the Learned Senior Public Prosecutor for the State, I am of the opinion that the petitioner has not made out any case for grant of bail._ _**Mohit Agarwal (Supra)** clearly takes the view that, when the prosecution has collected materials which incriminate the accused dehors the confessional statement of any co-accused, a plea that the entire case is_ B.A. No.1473/2024 -4- _built up on the basis of the confessional statement, cannot be accepted. That decision also holds that merely on account of the fact that there is no recovery from the possession of the accused, it cannot be assumed that he is not guilty of the offence, for which he has been charged. It was held that such an assumption would be premature at the stage of bail. It was further held that the length of the period of custody or the fact that the charge - sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the accused considering the provisions of S.37 of the NDPS Act. In_ _**Union of India v. Rattan Mallik** ; (2009) 2 SCC 624, it was held that the High Court went wrong in taking the view that, in the absence of actual possession by the accused, bail could be granted notwithstanding the rigour of Section 37 of the NDPS Act._ _**Md.Nawas Khan** (supra) approves the view taken in_ _**Rattan Mallik (supra)** & in_ _**Dharampal Singh v. State of Punjab** , 2010 (9) SCC 608 and holds:-_ _“25. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under S.37(1)(b)(ii) of the NDPS Act”._ _Therefore, I am not inclined to hold that the petitioner is entitled to bail on the ground that there was no recovery, personally from him. I am also not inclined to accept the submission for the petitioner that if at all the petitioner is connected to the case, he can only be linked to the quantity recovered from the car. I have also perused the case diary. The petitioner has not been linked only on the basis of the statement recorded from the 2nd accused. There appear to be some materials to otherwise link the petitioner with the allegations raised against him. Therefore, the arguments raised for the petitioner, on the ratio of_ _**Pallulabid Ahmad Arimutta** (supra) &_ _**Bharat Chaudhary** (supra), does not appeal to this Court._ _5. The criminal antecedents of the petitioner also suggest that, even if I were to hold that the first part of Section 37 (1)(b) (ii) {that the there are reasonable grounds to believe that the petitioner is not guilty of the offence alleged}, the second part which requires the Court to also be satisfied that the accused will not commit any offence while on bail, is certainly not satisfied. The Bail application fails and it is therefore, dismissed. I make it clear that no observation in this order will prejudice the petitioner at his trial. All observations are only for considering the entitlement of the petitioner for bail, in the light of the provisions contained in Section 37 of the NDPS Act.”_ B.A. No.1473/2024 -5- 5. The learned counsel for the petitioner would vehemently contend that the petitioner has been in custody for more than 2 ½ years having been arrested on 30-09-2021. It is submitted that the investigation has been completed and the final report has already been filed in the matter. It is submitted that a perusal of the prosecution records forming part of the final report would indicate that there are several statutory violations. It is submitted that the law laid down by this court in _**Union of India v. Mohan Lal;** 2016 KHC 6069_ has been violated. It is submitted that the provisions of Section 52 (3) of the NDPS Act have been violated. It is pointed out that several clauses in Circular No.18/2020/PHQ dated 07-05-2020 regarding compliance with provisions of Section 52 have also been violated. It is submitted that there is a clear violation of Section 42 (1) of the NDPS Act. It is submitted that there is a violation of Section 52 A (2) of the NDPS Act in preparing the inventory and also in the sampling of the alleged contraband. It is submitted that when there are clear procedural violations, going by the judgment of the Punjab and Haryana High Court in _**Paramjit Singh Chahal v State of Punjab;** 2014 SCC OnLine P&H 6179,_ notwithstanding the provisions of Section 37 of the NDPS Act the petitioner is entitled to be granted bail. B.A. No.1473/2024 -6- 6. Sri. C.K. Suresh, learned Senior Public Prosecutor appearing for the State vehemently opposes the grant of bail to the petitioner. It is submitted that the circumstances of the case considered by this court while considering Annexure-A5 and A6 bail applications filed by the petitioner are sufficient to indicate that the petitioner is not entitled to bail. It is submitted that the antecedents of the petitioner indicate that the petitioner cannot be granted bail. It is submitted that the allegation that there have been statutory violations is a question of fact which has to be proved at the time of trial of the case. It is submitted that according to the prosecution, there are no statutory violations as alleged by the petitioner. It is submitted that even if this court were to take a view on a consideration of the contention taken by the learned counsel for the petitioner that _prima facie_ there have been certain statutory violations that by itself will not enable the petitioner to contend that he is entitled to be released on bail considering the provisions of Section 37 of the NDPS Act. It is submitted that the decision of the Punjab and Haryana High Court in _**Paramjit Singh Chahal**_ (supra) does not lay down the correct law. He states that a Division Bench of Calcutta High Court has taken a contrary view in _**Sarwan Ram alias Sarwan Singh Ram and another v State of West Bengal;** 2017 KHC 3288_ where a contention was taken that there is a breach of Section 50 of the NDPS Act and, therefore, the B.A. No.1473/2024 -7- accused may be granted bail notwithstanding the provisions contained in Section 37 of the NDPS Act. It is submitted that the Calcutta High Court has taken the view that even if there is _prima facie_ material to suggest any statutory violation that does not entitle the accused to seek bail if the twin conditions under Section 37 of the NDPS Act are not satisfied. 7. Having heard the learned counsel for the petitioner and the learned Senior Public Prosecutor, I am of the view that the learned Senior Public Prosecutor is right in contending that even if this court were to take a view, _prima facie,_ that there have been statutory violations that by itself does not entitle the petitioner to bail. It is well settled that the twin conditions of Section 37 of the NDPS Act must be cumulatively satisfied to enable this court to release a person involved in an offence relating to a commercial quantity of narcotic drug on bail. Firstly there must be reasons for the court to believe that the petitioner is not guilty of the offence alleged against him. Even if this Court were to accept, _prima facie,_ that there have been certain statutory and, therefore, the first conditions in Section 37 of the NDPS Act is satisfied, the fact that the petitioner is accused in 35 other cases including cases under the NDPS Act indicate that the second condition cannot be said to be satisfied. The second condition is that the court must also be of the view that if granted bail the petitioner will not indulge in similar offences in future. The criminal B.A. No.1473/2024 -8- antecedents of the petitioner indicate that there is no material before this court to conclude that if the petitioner is granted bail he will not commit similar offences in future. The bail application is therefore dismissed. Sd/- **GOPINATH P. JUDGE** AMG B.A. No.1473/2024 -9- ## **APPENDIX OF BAIL APPL. 1473/2024** ## **PETITIONER ANNEXURES** - **Annexure A1 A TRUE COPY OF THE FIR IN CRIME NO: 1479/ 2020 OF MAVELIKKARA POLICE STATION** - **Annexure A2 A TRUE COPY OF THE RELEVANT PAGES OF FINAL REPORT IN SC NO: 166/2022 IN THE FILES OF ADDITIONAL DISTRICT COURT - I, MAVELIKKARA, ALAPPUZHA DISTRICT** - **Annexure A3 A TRUE COPY OF THE ORDER IN CRL M.P NO: 2836/2021 DATED 10/1/2022 ON THE FILES OF SESSIONS COURT, ALAPPUZHA** - **Annexure A4 A TRUE COPY OF THE ORDER IN CRL M.P NO: 1090/2022 DATED 7/5/2022 ON THE FILES OF SESSIONS COURT, ALAPPUZHA** - **Annexure A5 A TRUE COPY OF THE ORDER DATED 18/2/2022 IN B.A NO: 1144/2022 OF THIS HON'BLE COURT** - **Annexure A6 A TRUE COPY OF THE ORDER DATED 05/1/2023 IN B.A NO: 4092/2022 OF THIS HON'BLE COURT** - **Annexure 7 ORDER DATED 05-01-2023 IN BAIL APPL.4092/2022 ON HIGH COURT** - **Annexure A7 A TRUE COPY OF THE GENERAL DIARY ABSTRACT DATED 30.12.2020** - **Annexure A8 A TRUE COPY OF THE JUDGEMENT DATED 28.01.2016 IN UNION OF INDIA VS. MOHANLAL &ANR REPORTED IN 2016 KHC 6069** - **Annexure A9 A TRUE COPY OF THE CIRCULAR DATED 23.07.2016 ISSUED BY EXCISE COMMISSIONER** - **Annexure A10 A TRUE COPY OF THE STANDING ORDER NUMBER 1/89 DATED 13.06.1989 ISSUED BY THE GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE)** - **Annexure A11 A TRUE COPY OF THE JUDGEMENT, UNION OF INDIA VS. BAL MUKUND &ORS 2009 (12) SCC 161** B.A. No.1473/2024 -10- **Annexure A12 A TRUE COPY OF THE CIRCULAR NO: 18/2020/PHQ DATED 7/5/2020 ISSUED BY DIRECTOR GENERAL OF POLICE & STATE POLICE CHIEF** **Annexure A13 A TRUE COPY OF THE JUDGMENT IN ABDUL RAKEEB V STATE OF WEST BENGAL, CRM (NDPS) NO: 546/2023 OF THE DIVISION BENCH OF HON'BLE KOLKATTA HIGH COURT**