Liju Oommen v. State of Kerala and The Station House Officer, Mavelikkara Police Station

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** **BAIL APPL. NO. 4092 OF 2022** Crime No.1479/2020 of Mavelikkara Police Station ## **PETITIONER:** LIJU OOMMEN AGED 45 YEARS EBENEZER PUTHEN VEEDU, PONAKAM MURI, THEKKEKKARA VILLAGE, MAVELIKARA, ALAPPUZHA DISTRICT, PIN - 690501 BY ADVS. M.G.SREEJITH LUKE J CHIRAYIL REGHU SREEDHARAN P.VIJAYA BHANU (SR.)(K/421/1984) ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER MAVELIKARA POLICE STATION, ALAPPUZHA DISTRICT, PIN - 690101 BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ## **OTHER PRESENT:** ADV. CK SURESH (SR GP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A. No.4092/2022 -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 Sections 20 (b) (ii) C and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act for short') Sections 55 (g) and 8 (1) and(2) of the Kerala Abkari Act, Section 6 read with Section 24 of the Cigarettes and Other Tobacco Products Act, 2003 and Section 212 and 201 of the Indian Penal Code. 2. This is the second bail application filed by the petitioner before this court. The earlier bail application filed by the petitioner as B.A. No.1144/2022 was dismissed by this court by order dated 18-02-2022. Sri. P. Vijaya Bhanu, learned Senior Counsel appearing for the petitioner on the instructions of Adv. Luke J. Chirayil would submit that there is a substantial change in the circumstances from the time at which the earlier bail application of the petitioner was considered by this court. It is submitted that a final report has been filed in Crime No.1479/202o. It is submitted that a perusal of the final report will suggest that the petitioner is absolutely innocent of all the allegations levelled against him, and the materials relied on by the prosecution for the purpose of roping in the petitioner are completely baseless. It is submitted that while considering the earlier application of the petitioner, this court proceeded on the basis that there was the recovery of a commercial quantity of narcotic drug from the petitioner and, therefore, the provisions of Section 37 of the NDPS Act would apply. It is submitted that a reading of the final report shows that the case of the prosecution presently is that the contraband was recovered from a house rented out by the 2[nd] accused, in which, the B.A. No.4092/2022 -3- 2[nd] accused was residing with her minor children. It is submitted that the only material relied on by the prosecution to connect the petitioner with the offence is the statement of some of the witnesses that the petitioner was a frequent visitor in the house of the 2[nd] accused and also that there was a recovery of approximately 2 Kgs of Ganja from a car (registered in the name of the wife of the petitioner) parked in front of the house in question. It is submitted that even assuming without conceding that the quantity of Ganja recovered from the car could be connected with the petitioner, the quantity recovered from the car is not a ‘commercial quantity’ of Ganja and, therefore, the provisions of Section 37 of the NDPS Act cannot apply in the case of the petitioner. It is submitted that there is absolutely no material to connect the petitioner with the alleged recovery from the house of the 2[nd] accused. It is submitted that even the car was in the custody of the 2[nd] respondent, as it is the case of the prosecution that, on the request of the police officials, the 2[nd] accused had handed over the key of the car, leading to the alleged search and recovery from the car. It is submitted that the prosecution heavily relies on the fact that the petitioner is accused in at least 35 other cases to drive home the point that the petitioner is not entitled to bail. It is submitted that in 33 out of the 35 cases in which the petitioner is stated to be an accused, the petitioner has been acquitted. It is also submitted that the proceedings initiated against the petitioner under the provisions of the Kerala Anti-Social Activities (Prevention) Act, also cannot be a ground to deny bail to the petitioner as two of those detention orders have been quashed. It is submitted that in one other case, the petitioner was directed to be released by the Advisory Board and in the last one, the Home Department itself had revoked the order of preventive detention. It is submitted B.A. No.4092/2022 -4- that the petitioner has been roped into the case only on account of some malice, and the petitioner actually has no connection whatsoever with the alleged contraband recovered from the premises of the 2[nd] accused. It is also submitted that while the earlier bail application was being considered, it was the case of the prosecution before this court that the house in question was actually rented out by the petitioner for the residence of the 2[nd] accused. It is submitted that, the final report, however, does not contain any material that suggest that the petitioner was the person who took the house on rent as suggested by the prosecution earlier. It is submitted that, on the other hand, the statements of witnesses clearly indicate that the house was taken on rent by the 2[nd] accused and was used by her for the purpose of residence. The learned Senior Counsel also submits that the judgment of the Supreme Court in _**Union of India v. Muhammed Navas Khan;** (2021) 10 SCC 100,_ cannot be pressed into service by the prosecution to contend that even when there is no recovery from the possession of the petitioner the provisions of Section 37 can be applied, as the fact situation in _**Mohammed Navas Khan (supra)**_ was completely different from the fact situation arising in this case. It is also submitted that the so-called statement made by the 2[nd] accused cannot be used against the petitioner as the statement recorded from the 2[nd] accused while in custody has no evidentiary value especially considering the fact that the said statement was given by a co-accused. The learned Senior Counsel has also placed reliance on the judgment of the Supreme Court in _**State v. Pallulabid Ahmad Arimutta and others;** 2022 (1) KLT 552 (SC)_ to contend that the CDR details, whatsaap chats and such other materials as is being pressed into service to establish the complexity of the petitioner in the crime cannot be considered at this stage as those are matters B.A. No.4092/2022 -5- to be considered at the time of trial. It is submitted that the judgment of the Supreme Court in _**Bharat Chaudhary v. Union of India**_ , 2022 (3) Supreme 171, is also an authority for the same proposition. Lastly, it is submitted that the petitioner has completed more than 495 days in custody, and therefore, the continued detention of the petitioner is absolutely illegal and unnecessary in the facts and circumstances of this case. 3. Sri. C.K. Suresh, the learned Senior Public Prosecutor appearing for the State vehemently opposes the application for bail. It is submitted that the search and recovery was based on the reliable information received by the Sub Inspector of Police, Mavelikkara, that huge quantities of contraband were being stored in the house being used for the residence of the 2[nd] accused. It is submitted that even at the time when a report was made by the Sub Inspector (in compliance with Section 42 of the NDPS Act), the name of the petitioner/1[st] accused is mentioned as the person responsible for storing and dealing with contraband which was subsequently recovered from the house of the 2[nd] accused. It is submitted that the prosecution has collected sufficient material to establish that the petitioner was a person who was dealing in drugs on a large scale with the active assistance and support of the other accused in the case. It is submitted that the prosecution has received reliable and credible evidence to show that the 2[nd] accused was the paramour of the 1[st] accused/petitioner and that the 1[st] accused was actually living with the 2[nd] accused for at least part of the time. It is submitted that the 1[st] accused had even signed documents before a hospital in Kochi describing himself as the husband of the 2[nd] accused for the purposes of treatment taken by the 2[nd] accused and that the petitioner was later arrested from the company of the 2nd accused when they were B.A. No.4092/2022 -6- secretly staying together in a flat arranged by the 3rd accused. It is submitted that the car parked in front of the house of the 2[nd] accused from which there was a recovery of contraband was registered in the name of the wife of the 1[st] accused. It is submitted that the police had recovered several incriminating materials including photographs and ‘whatsapp’ chats, which would indicate that the 1[st] accused was the real mastermind behind the storage and distribution of contraband in violation of the provisions of the NDPS Act. It is submitted that the 2[nd] accused was actually helping the 1[st] accused and there are also materials to suggest that customers used to contact the 2[nd] accused and the 2[nd] accused used to inform the petitioner, of the various trade in narcotic drugs engaged by the 2[nd] accused and the amount of money collected by the 2[nd] accused from the sale of narcotic drugs. It is submitted that the petitioner is accused in at least 35 cases including cases registered under the NDPS Act. It is submitted that, in some of the cases, the proceedings against the petitioner were quashed on the basis of settlement between the petitioner and the _de-facto_ complainant in those cases. It is submitted that there are cases registered against the petitioner under the Arms Act, the Explosive Substances Act, apart from cases registered involving other serious offences under the Indian Penal Code. It is submitted that the petitioner is accused in Crime No.1061/2015 of Maradu Police Station which again involves an intermediary quantity of a narcotic drug. It is submitted that the petitioner is also accused in Crime No.1027/2014 of Thrikunnapuzha Police Station, where again the case involves a commercial quantity of narcotic drugs. It is submitted that the case registered at the Thrikunnapuzha Police Station is under trial before District and Sessions Court, Alappuzha as S.C. No.203/2015. It is submitted that the fact that the proceedings B.A. No.4092/2022 -7- were initiated against the petitioner four times under the Kerala Anti-Social Activities (Prevention) Act, is sufficient to establish that the petitioner is a serial offender and that, if the petitioner is released on bail, it is very likely that he will involve himself in the commission of other offences including offences under the NDPS Act. It is submitted that the law laid down in _**Muhammed Navas Khan's case**_ squarely apply to the facts of this case and even if this court were to accept the contention of the learned Senior Counsel for the petitioner that there is no recovery from the possession of the petitioner, the law laid down in that decision clearly applies and the provisions of Section 37 of NDPS Act will continue to apply in the case of the petitioner. It is also submitted that the presumption under Section 54 of the NDPS Act clearly applies to the facts and circumstances of this case. It is also submitted that the search and seizure in this case was completed after complying with the provisions of Sections 42, 52 and 57 of the NDPS Act. The learned Senior Public Prosecutor also relies on _**Narcotics Control Bureau vs Mohit Agarwal**_ ; 2022 KHC 6720; **Md.Nawas Khan** _**(supra)**_ ; _**Shaji P.A v State of Kerala**_ ; 2018 (3) KHC 429. 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 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 B.A. No.4092/2022 -8- 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 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. B.A. No.4092/2022 -9- 5. The criminal antecedents of the petitioner also suggest tha, 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. Sd/- **GOPINATH P. JUDGE** AMG B.A. No.4092/2022 -10- ## **APPENDIX OF BAIL APPL. 4092/2022** PETITIONER ANNEXURES - Annexure-A1 TRUE COPY OF FIR AND FINAL REPORT IN SC NO.166/2022 IN THE FILES OF ADDITIONAL DISTRICT COURT-I, MAVELIKARA, ALAPPUZHA DISTRICT - Annexure-A2 TRUE COPY OF ORDER IN CRL.M P NO. 2836/2021 DATED 1001-2022 ON THE FILES OF SESSIONS COURT, ALAPPUZHA - Annexure-A3 TRUE COPY OF ORDER IN CRL.M P NO. 1090/2022 DATED 0705-2022 ON THE FILES OF SESSIONS COURT, ALAPPUZHA - Annexure-A4 TRUE COPY OF THE JUDGEMENT DATED 13-12-2018 IN SC NO.724/2011 IN THE COURT OF ASST. SESSIONS JUDGE, MAVELIKARA