Malaichamy and Vairamuthu v. State of Kerala and Inspector of Police, Nemom Police Station, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941 BAIL APPL..NO.8888 OF 2019 CRIME NO.365/2019 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONERS/ACCUSED :** **1 MALAICHAMY, AGED 43 YEARS S/O.VAIRA THEVAR, 2/214 COLONY STREET, THANAKKANKULAM, MADURAI. 2 VAIRAMUTHU, AGED 27 YEARS S/O.SRINIVASA THEVAR, 837, KANAKKAPILLAI STREET, KARUTHANPATTI, USILAPATTI TALUK, MADURAI DISTRICT. BY ADVS. SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH** ## **RESPONDENT/COMPLAINANT :** |**1**|**STATE OF KERALA,**| |---|---| ||**REP. BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM.**| |**2**|**INSPECTOR OF POLICE,**| ||**NEMOM POLICE STATION,**| ||**THIRUVANANTHAPURAM.**| ## **R1-2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **SRI ANAS. K.A PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BAIL APPL..NO.8888 OF 2019** **2** ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicants herein are the accused in S.C No. 1216 of 2019 on the files of the Additional Sessions Judge-II, Thiruvananthapuram. In the aforesaid case, they find themselves indicted for having committed the offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. Prosecution allegation, as per the charge laid before the learned Special Judge is that, on 08.02.2019 at about 11.25 a.m., the vehicle in which the applicants herein were travelling was intercepted at Pallichal junction by the Sub Inspector of Police, Nemom Police Station and on inspection of the vehicle, they were found transporting 75.80 Kgs. of ganja in 40 packets in the dickey of the car. Accused were arrested and the contraband were seized. After completion of the investigation, final report has also been laid. 4. Sri. R.Sanjith, the learned counsel appearing for the applicants, submits that the detection and seizure of the contraband is against the formalities held to be mandatory by the Hon’ble Supreme **BAIL APPL..NO.8888 OF 2019** **3** Court as well as this Court. Referring to the mahazar, the learned counsel submits that, the ganja was found packed in 40 separate packets showing that it was Kitkat, a popular confectionery. It is submitted that the applicants herein were mere drivers and they were not aware that the contents of the packet were narcotic drugs. It is further submitted that, the contraband was transported from the State of Tamil Nadu to Kerala as directed by the owner of the goods and the applicants herein had no occasion to examine the contents or to ascertain as to whether the goods were in fact chocolate or any other substance. It is further urged that the applicants did not make any attempt to escape which itself would vouchsafe their innocence. Learned counsel would also submit that the procedure adopted by the investigating officer for sampling the contraband is against all tenets of law. The forty packets were opened by the officer concerned and it was mixed and it was thereafter, the samples were lifted. This is in clear violation of Section 52(a)(ii) of the Act, submits the learned counsel. Learned counsel would also submit that the applicants herein are residents of the State of Tamil Nadu and they were not made aware of the rights by the detecting officer. Failure to effectively communicate them of their rights is the fatal, submits the counsel. Finally, it is submitted that the applicants have been in custody from 08.02.2019 and since the final report has already been laid, no purpose would be **BAIL APPL..NO.8888 OF 2019** **4** served in keeping them under incarceration. 5. The learned Public Prosecutor has opposed the prayer. It is submitted that a quantity of over 70 Kgs of ganja was seized from the possession of the applicants. He would point out that the contention of the learned counsel that the applicants were drivers cannot be accepted. The contention that they were not in possession of any documents to facilitate inter state transportation of goods itself would show the falsity of the contentions. He would also contend that the contraband was seized from the dickey of the vehicle and hence, the provision of Section 50 will not have any application. In so far as the violation of Section 52A is concerned, the learned Public Prosecutor submits that the statute does not contemplate that the item seized would be produced before the learned Magistrate in the very same condition as it was seized. In the case on hand, the contraband was produced before the learned Magistrate on the next day itself and proper inventory was prepared. He would then contend that unless the applicants satisfy the twin parameters laid down under Section 37 of the Act, they cannot be enlarged on bail at this stage. Much reliance is placed on the decision of the Apex Court in **Union of India (UOI) v. Shri Shiv Shanker Kesari[1]** to support his contentions. 1 (2007) 7 SCC 798 **BAIL APPL..NO.8888 OF 2019** **5** 6. I have considered the submissions advanced and have gone through the materials made available. 7. It is by now settled that the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case, where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is manifest that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds”, which expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated, in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. **BAIL APPL..NO.8888 OF 2019** **6** The court has also to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. 8. Having carefully considered the materials in the final report, I find that enough materials have been collected by the prosecution to link the applicants herein with the trafficking of drugs. The contention that the procedural formalities have been violated has not been substantiated by the accused. The records reveal that the contraband was being trafficked to the State of Kerala by disguising it as confectionery. They were not in possession of any bills or invoices, which would have shown that they were merely drivers who were entrusted with the transportation of goods. Furthermore, the investigation conducted by the police clearly reveals that the contraband was being transported to the State of Kerala for sale and distribution in the State. As held by the Apex Court in **State of Punjab v. Baldev Singh[2]** , drug abuse is a social malady. While drug addiction eats into the vitals of the society, 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. Drug trafficking, trading and its use have become a global phenomena and has acquired the dimensions of an epidemic. It affects the economic policies of the 2 [AIR 1999 SC 2378] **BAIL APPL..NO.8888 OF 2019** **7** State, destroys the young and healthy and corrupts the system. 9. In that view of the matter, while considering an application for bail in a case of instant nature, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications both at the national level and also at the international level. 10. Having carefully weighed all the contentions advanced before this Court and after perusing the records, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. Furthermore, it would not be possible to conclude that the applicants are not likely to commit any offence while on bail. I hold that the applicants have not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. Since **BAIL APPL..NO.8888 OF 2019** **8** the applicants have been undergoing incarceration from 08.02.2019, the learned Special Judge may make all endeavor to expedite the trial proceedings and take the matter to its logical conclusion at the earliest. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS