Momine Anselme v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945** **BAIL APPL. NO. 11504 OF 2023** **CRIME NO.467/2022 OF Walayar Police Station, Palakkad** ## **PETITIONER/A4** **MOMINE ANSELME AGED 33 YEARS S/O KONDO, 52 PARK AVENUE, ORIEAGY, UDI STATION, ENUGU STATE, NIGERIA, PIN - 401101** **BY ADV AKHIL VIJAY** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 S.H.O., WALAYAR POLICE STATION SALEM-ERNAKULAM HIGHWAY, WALAYAR, PUDUSSERY EAST, KERALA, PIN - 678620** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.01.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 11504 OF 2023** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 4[th] accused in Crime No.467/2022 of the Walayar Police Station, Palakkad, registered against six persons for allegedly committing the offences under Sec.22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act' for short). The petitioner was arrested on 10.11.2022. 2. The prosecution case, in brief, is that on 16.10.2022 at about 4.40 pm, while the Police were on patrolling duty near the Walayar toll plaza on Palakkad National Highway No.544, they found the 1[st] accused carrying 12.85gms of MDMA in a brown bag. He confessed that he had received the contraband article from the 2[nd] accused with the aid of the 3[rd] accused. The 2[nd] accused, in turn, confessed that the contraband was sold to him by the 4[th] accused through the 5[th] **BAIL APPL. NO. 11504 OF 2023** **3** accused. Thereafter, on 09.11.2022, the accused 4 and 5 were found in possession of 166.5gms and 5gms MDMA, respectively. It was the 6[th] accused who sold the contraband to the 4[th] accused and permitted the 4[th] accused to live with him to conduct the sale of the contraband article. Thus, the accused have committed the above offences. 3. Heard; Sri. Akhil Vijay, the learned counsel appearing for the petitioner and Sri.M.P.Prasanth, the learned Public Prosecutor. 4. The learned counsel for the petitioner zealously argued that the petitioner has been falsely implicated in the crime. Even going by the prosecution case, the contraband was seized on 16.10.2022. The petitioner is an Ivory Coast national. As per Annexure P4 air travel ticket, the petitioner had landed in Bangalore only on 28.10.2022. Therefore, by no stretch of the imagination can the petitioner be involved in the crime, and the case against him is a clear case of mistaken identity. In **BAIL APPL. NO. 11504 OF 2023** **4** addition to the plea of alibi, there is a complete violation of the procedure mandated under Sections 50 to 53 of the Act, which vitiates the entire prosecution, and the same is a valid ground to release the petitioner on bail. Furthermore, indisputably, the Detecting Officer had arrested the petitioner from Bangalore without obtaining a transit warrant, which again entails the petitioner being released on bail. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor assiduously opposed the application. He argued that the petitioner and the 6[th] accused are the masterminds in the crime. The 6[th] accused, who is a Liberian national, is the kingpin, and he is waging a war against the Nation through his drug mafia. His modus operandi is to bring international students to India under the guise of higher education, but the actual intention is to import lethal contraband drugs for commercial sale. The petitioner was residing with the 6[th] accused at the time **BAIL APPL. NO. 11504 OF 2023** **5** of his arrest. The other accused have confessed that it was he who had sold the contraband to them and also of his prominent role in the crime. Accordingly, the petitioner was caught red-handed with a huge commercial quantity of MDMA and he has been arraigned as an accused. The final report has been filed, and the case is now pending as SC No.551/2023 before the Court of Session, Palakkad. It is for the first time, when the trial is to commence that the petitioner has now raised the allegation of procedural irregularities. The petitioner’s remedy is to raise all the contentions in trial or seek to quash the final report and not in a bail application, that too at this stage. The petitioner may not be released on bail because there is a flight risk and every likelihood of him tampering with the evidence, and also, considering the modus operandi of the petitioner and his gang, he is sure to commit similar offences. Hence, the bail application may be dismissed. **BAIL APPL. NO. 11504 OF 2023** **6** 6. The prosecution allegation is that 12.85 grams of MDMA was seized from the possession of the 1[st] accused. The 1[st] accused had confessed that he had purchased the contraband article from the 2[nd] accused with the aid of the 3[rd] accused. In the course of the investigation, it was gathered that the contraband was sold by the petitioner to the 5th accused, from whom the 2[nd] accused had purchased 12.85 grams of MDMA. Consequently, on 09.11.2022, the Detecting Officer found the petitioner in possession of 166.5 grams of MDMA, and he was living with the kingpin – the 6[th] accused. Thus, prima facie, a substantial commercial quantity of MDMA has been allegedly seized from the petitioner. 7. Indisputably, the investigation in the crime is completed and the final report has been laid before the Court of Session, Palakkad. The case is numbered SC No.551/2023, and the trial is to commence. It is at this stage that the bail application is filed. **BAIL APPL. NO. 11504 OF 2023** **7** ## 8. In **Prasanta Kumar Sarkar v. Ashis** **Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding ## as follows: **“9.** xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: ( _i_ ) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ( _ii_ ) nature and gravity of the accusation; ( _iii_ ) severity of the punishment in the event of conviction; ( _iv_ ) danger of the accused absconding or fleeing, if released on bail; ( _v_ ) character, behaviour, means, position and standing of the accused; ( _vi_ ) likelihood of the offence being repeated; ( _vii_ ) reasonable apprehension of the witnesses being influenced; and ( _viii_ ) danger, of course, of justice being thwarted by grant of bail”. ## 9. in **Chandra Sarkar v.** Similarly, **Kalyan** ## **Rajesh Ranjan,** [(2004) 7 SCC 528], the Honourable ## Supreme Court observed thus: **“11.** The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any **BAIL APPL. NO. 11504 OF 2023** **8** order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: ( _a_ ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. ( _b_ ) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. ( _c_ ) Prima facie satisfaction of the court in support of the charge. (See _Ram Govind Upadhyay_ v. _Sudarshan Singh_ [(2002) 3 SCC 598] and _uran_ v. _Rambilas_ [(2001) 6 SCC 338.) 10. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regulates the grant of bail in cases involving offences under the Act. It is profitable to extract Section 37, which reads as follows: “ **37.** _**Offences to be cognizable and non-bailable**_ .—(1) Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A 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 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 subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” **BAIL APPL. NO. 11504 OF 2023** **9** 11. A plain reading of the above provision demonstrates that a person accused of an offence under Sections 19, 24 and 27-A of the Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Therefore, the power to grant bail to a person accused of committing an offence under the Act is subject to provisions contained under Sec.439 of the Code and parameters referred to above and on the accused satisfying the twin conditions under Sec.37 of the Act. 12. While interpreting ‘reasonable grounds’ prescribed under Section 37 of the Act, the Honourable Supreme Court in **Union of India v. Shiv Shanker Kesari** [(2007) 7 SCC 798] held as follows: **“7.** The expression used in Section 37(1)( _b_ )( _ii_ ) is “reasonable grounds”. The 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 **BAIL APPL. NO. 11504 OF 2023** **10** facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged”. ## 13. In **Union of India v. Mohd. Nawaz Khan** [(2021) 10 SCC 100], the Honourable Supreme Court, after referring to a host of judicial precedents on Section 37 of the Act, observed that: **“23.** Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has _not_ committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed”. 14. On a meticulous scrutiny of the factual matrix, for the purpose of bail and the law referred to above, taking into account the gravity of the accusation levelled against the petitioner, the severity of the punishment that can be imposed on him in the event of him being found guilty, the apprehension of the prosecution that there is an element of flight risk, and further the commercial quantity of the contraband allegedly seized from the petitioner, I am at this stage **BAIL APPL. NO. 11504 OF 2023** **11** not convinced that the petitioner is not guilty of the offence alleged against him and there is no likelihood of him committing a similar offence if released on bail. Thus, I do not find any cogent reasons or valid grounds to dilute the rigour under Sec.37 of the Act. The application is meritless and is only to be dismissed. Resultantly, the bail application is dismissed. **Sd/-C.S.DIAS(J) JUDGE** lsn