Mohsin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** **BAIL APPL.NO.6788 OF 2019** **CRIME NO.78/2019 OF PALAKKAD EXCISE RANGE OFFICE, PALAKKAD** ## **PETITIONER/ACCUSED NO.1:** **MOHSIN, AGED 29 YEARS, S/O ASSAINNAR,7/1003,CHETTIYAD PARAMBU, MATTANCHERRY VILLAGE,KOCHI TALUK, ERNAKULAM DISTRICT.** **BY ADV. SMT.ANITHA MATHAI MUTHIRENTHY** **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE,PALAKKAD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,COCHIN-682031.** **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. -------------------------------------B.A. No. 6788 of 2019 -------------------------------------Dated this the 4[th] day of November, 2019 ## O R D E R The petitioner herein has been arrayed as accused No.1 among the two accused in the instant Crime No.78/2019 of Excise Range Office, Palakkad, which was initially registered for offences punishable under Sec.20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. After the progress of investigation, now the offence as per Sec.29 of the NDPS Act has also been added in the instant case. 2. The prosecution case in short appears to be that, when the respondent officer concerned and his excise team were conducting a vehicle search at Valayar Check Post, Palakkad at about 7.50 pm on 24.7.2019, the respondent officer had seen the petitioner (A1) coming out of a travel bus bearing registration No.KL-70A-5199 (SUPA Travels bus) and when the respondent entered into the bus for inspection, he had seen two accused persons coming out of the bus with one bag each in their hands B.A. No. 6788 of 2019 **==> picture [19 x 9] intentionally omitted <==** and upon suspicion, trolley bag of A1 was searched first and certain amount of Ganja was seized. Then the trolley bag belonging to A2 was separately searched and another amount of Ganja was seized from him. It is the admitted case of prosecution, that the Ganjas seized from A1 & A2 have not been separately measured and seized. The said contraband materials (Ganjas) seized both from A1 & A2 have been weighed together, which comes to 22 kilograms, which fulfils the norm for commercial quantity. Further that, the respondent officer had then apprised accused Nos.1 & 2 about the right under Sec.50 of the NDPS Act, and the Excise Inspector Sri.R.Balasubramanyam was brought to the place of occurrence and personal search of both the accused persons was conducted and no contraband was found from the person of both the accused. As mentioned herein above, the total weight of seized Ganja contraband seized from A1 & A2 together comes to 22 kilograms as stated in Anx.A1 seizure mahazar dated 24.7.2019. 3. Smt.Anitha Mathai Muthirenthy, learned counsel appearing for the petitioner herein (A1) would submit that her party (A1) has nothing to do with A2 and no independent evidentiary B.A. No. 6788 of 2019 **==> picture [19 x 9] intentionally omitted <==** materials have been in any manner collected by the investigating agency headed by the respondent officer to even remotely establish that her party (A1) is in any manner connected to A2 except that both were travelling in the same bus or that they were sitting in adjacent seats, and further that if the Ganja seized from the petitioner herein (A1) were separately weighed, then the same would have come well below the lower limit of commercial quantity, which is 20 kilograms and upwards, and therefore the offence under the NDPS Act involving commercial quantity is not involved in the case as against the petitioner herein (A1), and hence the statutory restriction in the grant of bail as envisaged in Sec.37 of the NDPS Act will not in any manner the claim of petitioner for grant of bail. 4. The second argument raised by the petitioner's counsel is that, in Anx.A1 seizure mahazar dated 24.7.2019, the date and time of alleged seizure is shown as 24.7.2019 at 8 pm. Whereas in Anx.A2 Crime and Occurrence Report dated 25.7.2019 prepared by none other than the respondent officer would show as Column No.3 thereof, that the date and time of occurrence of the crime is 24.7.2019 at 20.00 hours (out of 24 hours), which means at 8 pm. Whereas B.A. No. 6788 of 2019 ..5.. Column No.6 of Anx.A2 Crime and Occurrence Report, it is clearly recorded by the respondent officer that A1 herein has been arrested on 24.7.2019 at 07.50 hours (24 hours), which means 7.50 am in the morning, and that A2 has been arrested on 24.7.2019 at 07.55 hours (24 hours), which means at 7.55 am. Accordingly, it is pointed out that the case of the prosecution agency is that, the petitioner herein (A1) was arrested on 24.7.2019 at 7.50 am whereas the occurrence of the crime is on 24.7.2019 at 8 pm and the seizure is also on 24.7.2019 at 8 pm and therefore it is seen that the arrest has been made about 12 hours prior to the alleged occurrence of crime and alleged seizure and therefore the abovesaid version given by prosecution is nothing but a story invented from their imagination, and the excise officer would have implicated the petitioner only for the purpose of implicating some accused persons as they have to satisfy their superior officers about detection in such cases. 5. On the abovesaid first aspect the counsel for the petitioner would place reliance on the judgment of Division Bench of this Court in _**Muthu Kumar v. Station House Officer [2008 (2) KLT 890]**_ , wherein it has been held that if the quantity seized from each B.A. No. 6788 of 2019 **==> picture [19 x 9] intentionally omitted <==** of the accused is below the commercial quantity, then the fetter under Sec.37 of the NDPS Act in the matter of grant of bail would not apply, and that the grant of bail to such an accused person could be considered. Further as a second point, the learned counsel appearing for the petitioner would place reliance on the judgment of Single Bench of this Court in _**Basant Balram v. State of Kerala [2019 (1) KLT 523]**_ . 6. The learned Prosecutor has submitted that the investigation has revealed that both A1 & A2 were acted conjointly and in concert, and that A1 & A2 had together booked bus tickets to travel from Coimbatore to Valayar, as per Anx.R1(a) Sl. Nos.22 & 23 thereof on 24.7.2019 at 7.30 am and that further investigation has revealed that both the accused persons have booked their journey as per Anx.R-1(a) through online from a single mobile number: _8139055786_ and e-mail id: moosimuhsin007@gmail.com, which was used by A1. Further that the driver and conductor of the bus have stated that both the accused have travelled together in the same bus in seat Nos. 22 & 23 respectively on 24.7.2019. This crucial piece of evidentiary material would clearly show that A1 & A2 were acting in concert and conjointly B.A. No. 6788 of 2019 ..7.. pursuant to the conspiracy hatched among themselves and since that is the position, Sec.29 of the NDPS Act would straightaway apply and Sec.29 of the NDPS Act reads as follows: _“29.Punishment for abetment and criminal conspiracy_ _(1) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence._ _(2)A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which__ _(a)would constitute an offence if committed within India;_ _or_ _(b)under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.”_ 7. It is thus argued by the learned Prosecutor that in view of the abovesaid factual aspects, A1 & A2 have acted in concert and conjointly pursuant to the conspiracy hatched among themselves, and therefore even if the seized Ganja have not been separately seized from them, both A1 & A2 will be liable severally and jointly for the said offence and therefore both of them would thus have the conjoint B.A. No. 6788 of 2019 ..8.. criminal culpability for the abovesaid offence (commercial quantity), and hence the fetter under Sec.37 of the NDPS Act would apply in the matter of grant of bail. 8. Sec.37(1)(b) of the NDPS Act mandates that _notwithstanding anything under the Cr.P.C., no person accused of an offence punishable under Sec.19 or Sec.24 of Sec.27A and also for offences involving commercial quantity, shall be released on bail or 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 offences and that he is not likely to commit any offence while on bail._ Therefore it is well settled that, once the case is for an offence on the NDPS Act of commercial quantity, then twin requirements of Sec.37(1)(b) of the NDPS Act will have to be fulfilled, and the Court in such cases should be satisfied not only that there are reasonable grounds for believing that the accused is not guilty of such offences, but also that he is not likely to commit any offence while on bail. In the instant case the petitioner has built up a case that there are B.A. No. 6788 of 2019 ..9.. serious infirmities in the prosecution materials, which would show that the arrest of the petitioner is about 12 hours prior to the alleged occurrence of crime and seizure of contraband. 9. By Anx.A3 this Court had dismissed the previous regular bail application filed by the petitioner herein (A1). This Court had then taken the opinion only for the purpose of regular bail plea that the said entries in Anx.A2 crime and occurrence report appear to be clerical omissions, and that the factual aspects stated in Column No.6 thereof, as the arrest took place at 7.50 am, could be a mistake and that the arrest could have been taken place at 7.50 pm. In the instant case the case of prosecution is that the petitioner herein (A1) and A2 had together booked their seats in the bus concerned as per Anx.R-1(a) on 24.7.2019 at 7.30 am and 7.28 am, as can be seen from Sl.Nos.22 & 23 of Anx.R-1(a). The learned Prosecutor has apprised this Court that the prosecution materials would show that the bus in which A1 & A2 had travelled had commenced the journey from Coimbatore at about 5.10 pm and had reached Valayar Check Post, B.A. No. 6788 of 2019 ..10.. Palakkad district after 7.30 pm, and thereupon the crime was detected and proceedings were initiated, and that the events actually have taken place at around 7.50 pm and thereafter on 24.7.2019. 10. However, the counsel for the petitioner would point out that, even if that is taken into account and conceded for argument sake, that the arrest of A1 & A2 is at 7.50 pm and 7.55 pm on 24.7.2019, then it is admitted case of prosecution that the time and date of occurrence of crime as per Sl.No.3 of Anx.A2 is 24.7.2019 at 20.00 hours, ie, 8 pm, and Anx.A1 seizure mahazar also states that the seizure is at 8 pm on 24.7.2019, and if that be so, still the arrest is at 7.50 pm on that day, whereas the occurrence of crime is on the same day at 8 pm and the seizure is also at 8 pm, and therefore the arrest is prior to the occurrence of crime and seizure, which is illegal and improper, etc and that this crucial aspect would raise serious doubts and suspicions about the very credibility and believability of the prosecution case. There appears to be force in the abovesaid contentions of the counsel for the petitioner, though it is rather technical. 11. The learned Prosecutor would urge that the petitioner B.A. No. 6788 of 2019 ..11.. herein (A1) is already involved in yet another case in Crime No.6/2019 of Excise Range Office, Mattanchery, for offences punishable under Sec.20(b)(ii)(C) of the NDPS Act, which is for a small quantity. It appears that the said offence is a bailable offence as the quantity of the contraband involved is a small quantity in terms of the NDPS Act. 12. In _**Basant Balram v. State of Kerala [2019 (1) KLT 523]**_ this Court dealt with an NDPS case where, according to prosecution, the seizure mahazar dated 9.10.2018 was prepared showing that the seizure of alleged contraband was at 5 pm on 9.10.2018. Even the notice issued under Sec.50 of the NDPS Act, was on 9.10.2018 at 3.45 pm. Arrest memo had shown that the accused was arrested on 9.10.2018 at 3.30 pm, that is much prior to even the interception of vehicle. Occurrence report in that case had shown that the arrest of A1 therein was at 4.45 pm on that day and that of A2 was at 4.50 pm. Taking note of these crucial aspects, this Court had taken the view in the said regular bail application proceedings that in view of the abovesaid sequence of evidences, it is rather difficult for the Court to comprehend as to how in the Sec.50 notice issued to the accused which is at 3.45 pm on that day, which is prior to the search B.A. No. 6788 of 2019 **==> picture [23 x 7] intentionally omitted <==** of the person and prior to interception of vehicle, and the arrest memo would show that the accused persons were arrested on 3.30 pm on that day and as to how the accused persons were arrested in that case, 15 minutes prior to the issuance of notice under Sec.50 of the NDPS Act was taken as a serious lapse in the prosecution story, and this Court had held that the said sequence of evidence is totally at variance with descriptions in the mahazar, wherein it is stated that after the seizure at 5 pm on that day that the accused were arrested. Accordingly this Court had held in paragraph No.19 of _**Basant Balram's**_ case supra that when inbuilt safeguards are violated with impunity and the mandatory formalities are breached, it would result in travesty of justice to leave the question of their compliance to be looked into only at the stage of trial and that this would lead to failure of justice to force the accused persons to be in custody till the trial is complete, and that therefore there are reasonable grounds for believing that the accused is not guilty of said offence, and that the Court cannot abdicate from its responsibility by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded, B.A. No. 6788 of 2019 ..13.. and that if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction. 13. It will be profitable to refer to paragraphs 18 & 19 of _**Basant Balram's**_ case supra, which read as follows: _“18. Of course, bail can be granted in a case involving commercial quantity of narcotic drugs only when it is shown that 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 cannotes 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. 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._ _19. In the instant case, when the inbuilt safeguards are violated with impugnity and when the mandatory formalities are breached, it would result in travesty of justice to leave the question of their compliance to be looked into only at the stage of trial. I am of the view that it would result in failure of justice to force the applicants to be in custody till the trial is complete. The_ B.A. No. 6788 of 2019 ..14.. _court's satisfaction within the meaning of sub-section(1)(b)(ii) of S.37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of S.235 of the Cr.P.C. Such a finding of guilty or not guilty can only be rendered after conclusion of the trial whereas the satisfaction that there are reasonable grounds for believing that the accused is not guilty has to be arrived at before the conclusion of trial, ie, at any stage of investigation or in the course of trial itself. This Court cannot abdicate from its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. In other words, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction.”_ 14. In the said case, the accused therein did not have any other adverse criminal antecedents. In the instant case, the petitioner herein (A1) is already involved in another crime, but it is a bailable offence. 15. Further, it has also to be borne in mind that the Investigating Officer has not cared to separately weigh the alleged contrabands Ganjas seized from A1 & A2 and it has been jointly weighed as 22 kilograms. The petitioner has a specific case that if the contraband were weighed separately as per the norm, then certainly it would have been much below the commercial quantity in which case B.A. No. 6788 of 2019 ..15.. the fetter under Sec.37(1)(b) of the NDPS Act will not apply, etc and in that regard the petitioner has placed reliance on the abovesaid judgement of the Division Bench of this Court in _**Muthu Kumar's**_ case supra. The prosecution has taken steps to add the offence as per Sec.29 of the NDPS Act for projecting a case of conjoint liability on account of conspiracy, etc only very belatedly and after filing of this bail application. Since the prosecution did not initially have a case based on the Sec.29 conjoint culpability, the act of the Investigating Officer in not separately weighing the Ganjas, which were separately recovered from the bags of A1 & A2 and its combined weighing, is a serious lapse. The abovesaid findings are made by this Court only for the limited purpose of regular bail plea in this case. Evaluating the facts and circumstances of this case in the light of the abovesaid dictum laid down by this Court in _**Basant Balram's**_ case supra and that in the Division Bench decision in _**Muthu Kumar's**_ case supra, this Court is inclined to take the view that atleast for the limited purpose of consideration of regular bail plea, the abovesaid lapses in the prosecution story are indeed serious and should lead this Court to take the view as in _**Basant Balram's**_ case supra that the B.A. No. 6788 of 2019 **==> picture [23 x 9] intentionally omitted <==** fetter of Sec.37(1)(b) of the NDPS Act will not apply, so that the petitioner could be released on regular bail, subject to stringent conditions. 16. The learned Prosecutor has cautioned this Court that there is a strong likelihood of the petitioner again committing similar offences if he is let out on bail. 17. Taking due note of the said caution made by the prosecution, it is ordered as a safeguard that in case the petitioner getting himself involved in any crime, especially of the offence under the NDPS Act, be it small quantity, medium quantity or commercial quantity, then the Investigating Officer would conduct summary enquiry about the same and file a comprehensive report before the competent court below concerned, upon which the said court will take steps for cancellation of bail granted to the petitioner hereby, after hearing both sides. 18. Accordingly it is ordered that, the petitioner shall be released on bail on his executing bond for Rs.2,00,000/- (Rupees Two Lakhs Only) and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below B.A. No. 6788 of 2019 ..17.. ## concerned. The grant of bail will be subject to the following conditions:- - _i. The petitioner shall report before the Investigating Officer (I.O.) concerned in relation to this case, at any time between 9 am and 1 pm, on every 2[nd] and 4[th] Saturdays for the next one year, and thereafter he will report before the I.O. as and when directed by the said officer._ - _ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of investigation process._ - _iii. The petitioner shall not commit any offence while on bail._ - _iv. In case the petitioner getting himself involved in any crime, especially of the offence under the NDPS Act, be it small quantity, medium quantity or commercial quantity, then the Investigating Officer would conduct summary enquiry about the same and file a comprehensive report before the competent court below concerned, upon which the said court will take steps for cancellation of bail granted to the petitioner hereby, after hearing both sides._ - _v. The petitioner shall not influence or intimidate any witnesses not shall he tamper with evidences._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. 19. It is made clear that the abovesaid observations and B.A. No. 6788 of 2019 **==> picture [24 x 9] intentionally omitted <==** findings made by this Court herein above are only for the limited purpose of consideration of the issues under Sec.37(1)(b) of the NDPS Act as raised in this regular bail plea and it shall not in any manner influence or trammel any such issues that may be raised in all other appropriate proceedings in relation to this crime, which will have to be independently decided thereon. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG