Muhammed Asarudheen v. State of Kerala and Narcotic Control Bureau

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **Bail Appl..No.8431 OF 2019** ## **PETITIONER:** **MUHAMMED ASARUDHEEN AGED 26 YEARS** **S/O.ABDUL RAHEEM KASIMKUNJU, R/O THADATHARIKATHU HOUSE, NOORAMTHODU.P.O, KUNTHALAMTHERU, ADIVARAM, KOZHIKODE DISTRICT, PIN-673586** **BY ADV. SRI.SAM ISAAC POTHIYIL** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-682031** - **2 INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, SUB-ZONE, COCHIN-682037** - **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R2 BY SRI.M.V.S.NAMPOOTHIRI, SC, NARCOTICS CONTROL BUREAU** PP SRI AJITH MURALI ## **SRI M.V.S NAMPOOTHIRI SC** - **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** - **11.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BA 8431/2019 2 ## ORDER This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the second accused in OR No.4 of 2019 of the Narcotic Control Bureau, Sub Zone, Cochin. 3. The bare minimum facts which require to be noticed while considering this application is that on 02.09.2019, the officers of the Narcotic Control Bureau were alerted from the CISF Control Room, Calicut International Airport that during security check, some suspicious items akin to Narcotics were detected from the hand baggage of a passenger named Jabir Mulali bound for Doha by a Qatar Airways flight. They were requested to examine the contraband found on his person and to take appropriate action. The Intelligence Officer, NCB, proceeded to the spot and the suspect passenger was found with the CISF officers. On perusal of the contraband which was seized by the CISF, it was found to be a white coloured crystal substance. Using the standard testing kit, the sample was analysed and it was found to be methamphetamine, a psychotropic substance. The total quantity of contraband was found to be 490 gms. The contraband was seized and it was sampled and BA 8431/2019 3 labelled in accordance with law. He was informed of his rights under Section 50 of the Act and after securing the presence of a gazetted officer, his body search was carried out. Certain personal items were seized. Thereafter, summons was issued to the accused for recording his statement under Section 67 of the NDPS Act, 1985. In the statement, he disclosed that the contraband was entrusted with him by the applicant herein. He also disclosed that the flight ticket to Doha was also handed over and the applicant had travelled with him. Certain other aspects of the matter was also disclosed. On the basis of the above disclosure, notice was issued to the applicant to appear before the NCB. Though the notice was served on the father of the applicant herein, he did not appear for recording the statement. It is alleged that on 30.10.2019, the NCB officers intercepted the applicant pursuant to a surveillance operation. In his statement recorded under Section 67 of the NDPS Act, applicant is alleged to have disclosed that the contraband was entrusted with him by one Siraj V.M, and he was asked to be a mule to take the contraband to Qatar. A sum of Rs.70,000/- was agreed to be handed over and a sum of Rs.40,000/- was transferred through Google pay. It is alleged that the applicant herein duped the first accused by saying that the bag contained powder which is used to process gold. Based on the above disclosure, the applicant was arrested as per arrest memo dated BA 8431/2019 4 ## 03.10.2019. 4. In the course of investigation, the call data records were obtained and it was revealed that the applicant had been contacted the 1[st] accused. The applicant was roped in as the 2[nd] accused. He is accused of having committed offence punishable under Sections 8(c) r/w. Section 22(c), 23(c), 28 and 29 of the NDPS Act, 1985. 5. Sri. Sam Isaac Pothiyil, the learned counsel appearing for the applicant, submitted that the applicant had nothing to do with the seizure of contraband from the possession of the first accused. According to the learned counsel, the entire prosecution version revolves around the statement of the first accused recorded under Section 67 of the Act. Referring to the statement, learned counsel submits that there are numerous inconsistencies which would make it unsafe to rely upon the said statement and to implicate the applicant. According to the learned counsel, the seizure of the contraband from the possession of the 1[st] accused is beset with inconsistencies and the materials now available would show that the mandatory formalities have not been complied with. According to the learned counsel, the statement alleged to have been given by the applicant under Section 67 of the NDPS Act will have to eschewed as it was obtained by exerting enormous mental torture. He would also argue that the directions issued by the Apex BA 8431/2019 5 Court in **D.K.Basu V. State** [1997(1) SCC 416] and the provisions of the Cr.P.C. were blatantly violated by the detecting officer. It is submitted that the applicant was even prevented from securing legal advise from the counsel of his choice. Finally, it is submitted that the applicant has wife and a minor child and having regard to the long period of incarceration undergone and the stage of investigation, it is only just and proper that he be released on bail. 6. Sri M V S Namboothiri, the learned standing counsel appearing for the NCB has strenuously opposed the prayer. It is submitted that what has been seized from the possession of the 1[st] accused is about 500 gms of methamphetamine, which is a deadly psychotropic substance. According to the learned counsel, in the course of investigation, it was revealed that the 1[st] accused was merely a mule and the contraband was entrusted with him by the applicant by offering some reward for his services. According to the learned Public Prosecutor, unless the applicant satisfies the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the applicant cannot be released on bail. Much reliance is placed on the decision of the Apex Court in **Union** BA 8431/2019 6 **of India (UOI) v. Shri Shiv Shanker Kesari[1]** to support his contentions. 7. I have considered the submissions advanced and have gone through the materials made available. 8. 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. 1 (2007) 7 SCC 798 BA 8431/2019 7 For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement 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. 9. Having carefully considered the materials made available, I find that enough materials have been collected by the prosecution to link the applicant herein with the trafficking of drugs. The quantity that has been seized is 10 times the quantity fixed as commercial in the Statute. In the case on hand, huge quantity of contraband was attempted to be trafficked through the Calicut International Airport. All attempts are being made by the NCB to find out the source of drugs. The specific case of the prosecution is that the applicant is a link in the international trafficking of narcotic drugs and psychotropic substances. This international trade involves growers, producers, couriers, suppliers and dealers. It affects almost all the countries by undermining political and economic stability, ruining the lives of individuals and damaging communities. The end-users and addicts are often the victims of a powerful and manipulative business. Drug trafficking is often associated with other forms of crime, such as money laundering or corruption. Trafficking routes can also be used by criminal networks to transport BA 8431/2019 8 other illicit products. ## 10. **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 State, destroys the young and healthy and corrupts the system. 11. 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. 2 [AIR 1999 SC 2378] BA 8431/2019 9 12. 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 applicant is not likely to commit any offence while on bail. I hold that the applicant has 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. Furthermore, the investigation is still in the early stages. I find no reason to enlarge the applicant on bail at this stage. This application will stand dismissed. ## Sd/- RAJA VIJAYARAGHAVAN V JUDGE lgk BA 8431/2019 10