Mohammed Farooq, S/o Kareem v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **BAIL APPL. NO. 5022 OF 2022** **CRIME NO.1472 OF 2021 OF ANGAMALI POLICESTATION** **PETITIONER/ACCUSED NO.8:** **MOHAMMED FAROOQ,S/O KAREEM, AGED 25 YEARS, CHENTHARA HOUSE, KANJIRAKKAD KARA, NEAR KANJIRAKKAD POLICE QUARTERS, PERUMBAVOOR VILLAGE, ERNAKULAM - 683543** **BY ADV ANITHA MATHAI MUTHIRENTHY** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682031** ## **OTHER PRESENT:** **SR.PP - SMT. SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BANo.5022 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A.No. 5022 of 2022 .................................................................** Dated this the 25[th] day of July, 2022 ## **ORDER** This is an application for regular bail. 2. Petitioner is the 8[th] accused in Crime No.1472 of 2021 of Angamaly Police Station now pending as S.C. No.366 of 2022 on the file of the Additional Sessions Court-VIII, Ernakulam registered alleging commission of offences punishable under Sections 20(b)(ii) (C), 27A, 31(1) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. The prosecution allegation is that the 1[st] accused in the final report is a previous convict of the offence under the provisions of the NDPS Act. He directly and the 3[rd] accused in the final report through accused Nos.2, 4, 5 and 6 collected money for doing illegal business of narcotic drugs and deposited money to the account of the 7[th] accused directly and through the account of the 8[th] accused. They purchased dry ganja in packets of 2 kgs. While checking vehicles in front of the Appollo Adlex Hospital at Angamaly at 7.45 a.m. on 08.11.2021, CW1, the then Sub Inspector of Police, Angamaly checked car No.KL-08-BB-2008 driven by the 1[st] accused and seized 13 packets containing 25.72 kgs of ganja. Car No.KL-01-BB-1339 BANo.5022 of 2022 3 driven by the 2[nd] accused, in which the 3[rd] accused was travelling as a helper, was also checked by him at the same time and place and seized 199.66 kgs of dry ganja. He arrested accused Nos.1 and 3 from the scene of incident on 08.11.2021. The total quantity of 225.380 kgs of ganja was seized from accused Nos.1 to 3. During investigation the police could find that the petitioner who is the 8[th] accused in the final report was having telephonic conversations with accused 1 and 7 in the final report and he had received money through his account from the other accused and transferred the same to the 7[th] accused for purchasing ganja and thus committed the abovesaid offences. 4. Learned counsel for the petitioner submitted that the petitioner is in custody from 11.03.2022 onwards and as final report is already filed, there is no necessity for his continuance in custody. It is further submitted that the 1[st] accused is the cousin brother of the petitioner and the petitioner has no connection with the contraband allegedly seized. Learned counsel submits that the petitioner was doing buffalo business and used to transfer money to a person in Andhra Pradesh for purchasing buffalos. He further submits that apart from the telephonic calls allegedly made with the 1[st] accused, who is his first cousin, there is absolutely nothing on record to connect the petitioner with the alleged incident. He also submitted that the petitioner was taken into custody by the police without sufficient reasons and that the petitioner is ready to abide by any conditions that BANo.5022 of 2022 4 may be imposed by the court. 5. Learned Public Prosecutor seriously opposed the application for bail mainly contending that commercial quantity of narcotic drug is involved in the case. The 9[th] accused is yet to be apprehended. There are sufficient materials to show the involvement of the petitioner in the commission of the offence. It is submitted that it is the petitioner who has financed the business and the investigation revealed transfer of amounts between the petitioner and accused Nos.1 and 7 and there were a series of telephonic conversations between the petitioner and the other accused during the period immediately before the seizure of the contraband. 6. Learned counsel for the petitioner submitted that he has been roped in only on the confessional statement of the other accused which is totally inadmissible in evidence as per the decision in **Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1.** The counsel for the petitioner further submitted that the petitioner and the 1[st] accused are relatives and they are involved in buffalo business and in connection with the same, they used to transfer money to persons in Andhra Pradesh for purchasing buffalos and further contended that apart from the telephonic calls allegedly made with the 1[st] accused, there is absolutely nothing on record to connect the petitioner with the alleged incident. Learned counsel for the petitioner also relies on the judgments of the Apex Court in **Ragini Dwivedi alias Gini alias Rags** BANo.5022 of 2022 5 **v. State of Karnataka** , **2021 SCC OnLine SC 174** and **Aryan Shah Rukh Khan v. Union of India and another, 2021 SCC OnLine Bom 4127.** 7. Learned Public Prosecutor upon instructions further submitted that in the investigation the involvement of the petitioner in the alleged crime is clearly revealed. Petitioner had frequent mobile phone contacts with other accused including accused Nos.1, 2, 3, 6 and 7. Further, the funding by the petitioner for the alleged incident is also clearly revealed in the investigation conducted. Several times amounts were deposited from the account of the 1[st] accused to that of the petitioner and vice versa and some of the amounts deposited were huge. It is also revealed that huge amounts were transacted from the account of the petitioner to that of the 7[th] accused who is at Andhra Pradesh, on several occasions. Therefore, going by the said findings and after analysis of his bank accounts and CDR details, the involvement of the petitioner was revealed and therefore he was arrayed as an accused. Learned public prosecutor upon instructions submitted that the judgments relied on by the petitioner in **Ragini Dwivedi** ’s case (supra) and **Aryan Shah Rukh Khan** ’s case (supra) are not applicable in the facts and circumstances of the present case in as much as there are sufficient materials to connect the petitioner with the alleged incident other than the confessional statement of the co-accused. Going through the facts of the case relied on by the BANo.5022 of 2022 6 petitioner as above, I feel that those are not similar to the facts of the present case. In **Ragini Dwivedi** ’s case (supra), the entire case against the appellant therein was based on a statement by one Ravishanker and based on the same it could only be said that the petitioner consumed certain drugs and so the court entered a finding that even if all the offences charged are correct it can only be under Section 27 being the offence of consuming drugs. In **Aryan Shah Rukh Khan’** s case (supra) it was held that the petitioner therein was not in possession of any contraband and there is no evidence of any conspiracy. 8. Considering all these aspects, I am of the opinion that there is prima facie evidence regarding the role of the petitioner in the alleged offence. The contention of the petitioner based on **Tofan Singh** ’s case (supra) regarding the non-admissibility of Section 161 statement of the co-accused may not apply in the facts and circumstances of this case in as much as the said judgment only says that a statement made before the officer under Section 53, even when relevant under Section 53-A, cannot without corroborating evidence, be the basis for the conviction of an accused. The said judgment only says about the non-acceptability of such statement without corroborating evidence, in the event of which, cannot be a basis for conviction. In the present case, as per the prosecution case, other than the said statement, there are other materials to prima facie BANo.5022 of 2022 7 connect the petitioner with the alleged offence. The Apex Court recently in the **Narcotics Control Bureau v. Mohit Aggarwal** , **2022 SCC OnLine SC 891** , after referring to **Tofan Singh** ’s case (supra) held as follows: _17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage._ _18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, 'or him to have been admitted to bail. The length of the period of his custody or the fact that the chargesheet 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 respondent under Section 37 of the NDPS Act.”_ 9. The Apex Court, though in a case under the Protection of Child from Sexual Offences Act, in **Indresh Kumar v. State of Uttar Pradesh and another, Crl. Appeal No. 938 of 2022** , decided on 12.07.2022, considering the relevance of Section 161 statement while deciding an application for bail in case of grave offence, held as follows: _“The High Court has ignored the materials on record including incriminating statements of witnesses under Section 164/161 of the Code of Criminal Procedure. Statements under Section 161 of Cr.P.C. may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an_ BANo.5022 of 2022 8 _application for grant of bail in case of grave offence.”_ After consideration of the facts and circumstances of the case, I am of the opinion that the petitioner could not establish that the twin conditions in Section 37 of the NDPS Act is satisfied in the present case and the bail application is accordingly dismissed. It is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits during the trial. Sd/- **VIJU ABRAHAM** **JUDGE** cks