Manzoor Ali v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 BAIL APPL. NO. 7284 OF 2022** **CRIME NO.469/2022 OF KUTTIPURAM POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED NO.5:** **MANZOOR ALI AGED 48 YEARS, S/O. ALAVI, PALLIYALIYIL HOUSE, KODANGAD, KONDOTTY POST, MALAPPURAM DISTRICT, PIN - 673638 BY ADV P.C.MUHAMMED NOUSHIQ** ## **RESPONDENTS/STATE:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031**| |**2**|**THE STATION HOUSE OFFICER, KUTTIPURAM**| ||**KUTTIPURAM POST, MALAPPURAM DISTRICT,**| ||**PIN - 679571**| **P G MANU(SR PP)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.02.2023 ALONG WITH B.A.NO.8360 OF 2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.Nos. 7284 & 8360 of 2023 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 BAIL APPL. NO. 8360 OF 2022** **CRIME NO.469/2022 OF KUTTIPURAM POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED NO.4:** **ABDUL JALEEL C.P AGED 41 YEARS, S/O. MOHAMMEDKUTTY, CHAKKALAPARAMBIL HOUSE, THEYYALA P.O, MALAPPURAM DISTRICT, PIN - 676320 BY ADV E.C.AHAMED FAZIL** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER, KUTTIPURAM KUTTIPURAM POST, MALAPPURAM DISTRICT, PIN - 679571** **P G MANU(SR PP)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.02.2023 ALONG WITH B.A.NO.7284 OF 2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.Nos. 7284 & 8360 of 2023 3 ## **ORDER** ## **Dated this the 27[th] day of February, 2023** Bail application No. 8360 of 2023 is an application for regular bail filed under Section 439 of the Code of Criminal Procedure by the 4[th] accused in crime No. 469/2022 of Kuttipuram Police Station, Malappuram. The 5[th] accused in the same crime seeks regular bail in bail application No.7284/2023. 2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. Perused the case diary as such along with the report of the Investigating Officer, placed by the learned Public Prosecutor. Also gone through the decisions of the Apex Court highlighted by the learned counsel for the petitioners viz. _**Bharat Chaudhary and others v. Union of India and others**_ [MANU/SC/1240/2021] and _**State of West Bengal v. Rakesh Singh**_ [MANU/SC/0854/2022]. 3. The prosecution allegation is that, at about 11.30 hours on 19.08.2022, accused Nos. 1 to 3 were found in possession of 21.450 kilogram of Ganja while they were transporting the same in a car bearing registration No. TN-09-B-1275. The contraband was seized at Vasuppadi in Thangalppadi-Kumbidi Road. Accordingly, the prosecution alleges commission of offences B.A.Nos. 7284 & 8360 of 2023 4 punishable under Sections 20(b)(ii)(c) r/w 29 and 27(A) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘NDPS Act’ for short). 4. On further investigation, it was revealed from the confession statement given by the 2[nd] accused to the effect that, one 'Maanu Usthad' subsequently identified as Manzoor Ali was contacted through phone No.8129289705. He had directed deposit of the amount at Federal Bank, Kondotty Branch and accordingly, Rs.5,000/- was deposited in the account of Abdul Jaleel, who is the 4[th] accused, on five occasions. The said money was used for the purpose of purchase of Ganja. The further investigation revealed that, the 4[th] accused is the person who as directed by the 5[th] accused, transferred the money through a money exchange institution in Kondotty under the name “Shanu Money Point”. Accordingly, accused Nos. 4 and 5 were arrested on 31.08.2022. 5. While pressing for grant of regular bail to accused Nos. 4 and 5, the learned counsel for the petitioners submitted that the petitioners are innocent and the prosecution arrayed them as accused merely relying on the confession statement given by the 2[nd] accused and subsequently by the 4[th] accused and the said statements are inadmissible in evidence. 6. In support of this contention, the learned counsel for B.A.Nos. 7284 & 8360 of 2023 5 the petitioners has given emphasis to the decision of the Apex Court in [(2021) 4 SCC 1], _**Tofan Singh v. State of Tamil Nadu**_ , to contend that statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act and therefore the implication of accused Nos.4 and 5 in this crime merely based on the confession statements cannot be justified and, therefore, accused Nos. 4 and 5, who are innocent persons, are liable to be released on bail. 7. The learned counsel for the petitioners highlighted the decisions in _**Bharat Chaudhary**_ 's case (supra) to buttress the point that, statements recorded under Section 67 of the NDPS Act and call details connecting the accused are insufficient to implicate the petitioners in this crime. He also pointed out the decision in _**Rakesh Singh**_ 's case (supra), where in fact, intermediate quantity of contraband was involved and the rigour under Section 37 of the NDPS Act has no application. Summarizing so, the learned counsel for the petitioners submitted that, complicity of the petitioners in this case is much less and thus they pressed for grant of regular bail to the petitioners. 8. The learned Public Prosecutor strongly opposed grant of bail and submitted that, the rigour under Section 37 of the NDPS Act would perfectly apply to the facts of this case and therefore B.A.Nos. 7284 & 8360 of 2023 6 without satisfying the said conditions, bail cannot be granted. The learned Public Prosecutor also pointed out that, in this case, there are sufficient materials to implicate the petitioners in this crime. The learned Public Prosecutor, relied on the confession statement and the call details between accused Nos. 1, 2, 4 and 5 just before the transaction and during the relevant time of transaction, apart from the Bank documents showing transfer of money by the 4[th] accused as directed by the 5[th] accused as materials to show involvement of the petitioners herein in this crime. 9. On perusal of the decision in _**Bharat Chaudhary**_ 's case (supra) the Apex Court held in paragraph No.11 as under: “11. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 Under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15th July, 2021. This is all the more so when such a reliance runs contrary, to the ruling in Tofan Singh (supra). The Impugned order qua A-4 is, accordingly, quashed and set aside and the order dated 2nd November, 2020 passed by the learned Special Judge, EC & NDPS Cases, is restored. As for Raja Chandrasekharan [A-1], since the charge sheet has already been filed and by now the said Accused has remained in custody for over a period of two years, it is deemed appropriate to release him on ball, subject to the satisfaction of the trial Court.” B.A.Nos. 7284 & 8360 of 2023 7 10. In paragraph No.9 of _**Bharat Chaudhary**_ 's case (supra), the argument rendered by the learned Additional Solicitor General appearing for the DRI also has been reiterated as under: “9. Per contra, Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for DRI has supported the Impugned judgment and vehemently argued that A-4 is the mastermind behind the entire criminal conspiracy and he, in connivance with A-1, has been supplying contraband to A-1 to A-3, for being illegally exported abroad under the garb of sex enhancement tablets. She alluded to the 71 samples sent for testing and the test report of CRCL, Chennai dated 18th December, 2019 confirming the presence of narcotic substances along with male potency increment drugs and strenuously argued that the nexus between A-4 and A-1 to A-3 is not only established through the statements of A-1 to A-3 recorded Under Section 67 of the NDPS Act, but also from the documents in the form of printouts of the data downloaded from the mobile phone and laptop of A-4, in particular, the Whatsapp chats and bank transactions between A-1 and A-4. Submitting that since the twin tests laid down Under Section 37 of the NDPS Act in respect of commercial quantity for grant of bail have not been satisfied, the impugned order does not deserve interference.” 11. The pertinent question herein is whether sufficient materials in this crime to implicate the petitioners herein as B.A.Nos. 7284 & 8360 of 2023 8 additional accused, apart from the confession statement and CDR details are available. It is true that, confession statement is inadmissible in evidence in view of the ratio laid down _**Tofan Singh**_ 's case (supra). 12. The ratio in _**Tofan Singh**_ 's case (supra) has been considered by another three Bench of the Apex Court reported in [MANU/SC/0899/2021], _**Narcotics Control Bureau v. Mohit Aggarwal**_ where it has been held that, even though it was held in _**Tofan Singh**_ 's case (supra) by majority view that a confession statement recorded under Section 67 of the NDPS Act is inadmissible, the disclosure made by an accused which led the NCB team to arrive at and raid the godown of the co-accused which resulted in the recovery is admissible in evidence. Paragraph No.16 of _**Mohit Aggarwal**_ 's case (supra) is as under: "16. Coming back to the facts of the instant case, the learned Single Judge of the High Court cannot be faulted for holding that the Appellant-NCB could not have relied on the confessional statements of the Respondent and the other co- Accused recorded Under Section 67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the majority decision, a confessional statement recorded Under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act. Therefore, the admissions made by the Respondent while B.A.Nos. 7284 & 8360 of 2023 9 in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside. However, this was not the only material that the Appellant- NCB had relied on to oppose the bail application filed by the Respondent. The Appellant-NCB had specifically stated that it was the disclosures made by the Respondent that had led the NCB team to arrive at and raid the godown of the co- Accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups. Counsel for the Appellant-NCB had also pointed out that it was the Respondent who had disclosed the address and location of the co-Accused, Promod Jaipuria who was arrested later on and the CDR details of the mobile phones of all co-Accused including the Respondent herein showed that they were in touch with each other." 13. In this case, the call details showing constant calls in between the accused No.2 and other accused just before the detection and prior to that, also have been placed as part of the case diary. In addition to that, the Bank statement in the name of accused No.2 maintained at Federal Bank with account No.15110200005999 showing deposit of Rs. 70,000/- could be gathered. The above Bank transaction along with certificate under Section 65B of the IT Act also is placed to support the said transaction. B.A.Nos. 7284 & 8360 of 2023 10 14. Thus the facts of this case would go to show that, in deviation from the ratio in _**Bharat Chaudhary**_ 's case (supra) additional evidence through Bank transactions also have been collected by the Investigating Officer and therefore the present case cannot be held as one similar in facts dealt by the Apex Court in _**Bharat Chaudhary**_ 's case. Therefore, the said ratio as such cannot be applied. 15. Evaluating the facts of this case, in the context of discussion, I am not inclined to hold that the petitioners are absolutely innocent in this occurrence so as to release them on bail, ignoring the rider provided under Section 37 of the NDPS Act. 16. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: _37. Offences to be cognizable and non-bailable.--_ - _(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_ B.A.Nos. 7284 & 8360 of 2023 11 _on his own bond unless--_ _(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._ 17. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail. 18. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, _**Union of India v. Shiv Shankar Kesari**_ and held that the expression ‘reasonable grounds’ means something more than _prima facie_ B.A.Nos. 7284 & 8360 of 2023 12 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. 19. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. 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. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 20. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in _**Superintendent, Narcotics Central Bureau v. R.Paulsamy**_ [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], _**Customs, New Delhi v. Ahmadalieva Nodira**_ [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 B.A.Nos. 7284 & 8360 of 2023 13 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], _**Union of India v. Abdulla**_ [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], _**N.R.Mon v. Md.Nasimuddin**_ [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], _**Union of India v. Rattan Malik**_ [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], _**Union of India v. Niyazuddin**_ [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], _**State of Kerala v. Rajesh**_ [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. Latest decision on this point is one reported in [2023 Crl.L J 799], _**Union of India v. Jitendra Giri**_ . 21. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section B.A.Nos. 7284 & 8360 of 2023 14 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients. 22. Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused are not guilty of the offence and they will not likely to commit any offence while on bail. 23. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioners are not liable to be released on bail. Accordingly, this bail application stands dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK