Muhammed Kabeer N.M. v. State of Kerala and Station House Officer, Kasaragod Police Station (Bail Applications Nos. 6263 of 2022 and 6306 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WENESDAY, 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944** ## **BAIL APPL. NO. 6263 OF 2022** **CRIME NO.171/2022 OF Kasaragod Police Station, Kasargod** **AGAINST THE ORDER/JUDGMENTCRMP 1515/2022 OF DISTRICT COURT & SESSIONS &** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** **PETITIONER/ACCUSED NO.4:** **MUHAMMED KABEER N.M.,AGED 40 YEARS S/O IBRAHIM N.M, SHAREEFA MANZIL, T.N MOOLA, MUTTATHODY, KASARAGOD - 671123** **BY ADVS. SHAIJAN C.GEORGE VINAI JOHN** ## **RESPONDENTS/COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682031**| |**2**|**STATION HOUSE OFFICER**| ||**KASARAGOD POLICE STATION, KASARAGOD, PIN – 671121**| ||**BY PP SRI.M.C.ASHI**| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/10/2022, ALONG WITH Bail Appl..6306/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.6263 & 6306 of 2022 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WENESDAY, 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944** **BAIL APPL. NO. 6306 OF 2022** **CRIME NO.202/2022 OF Badiadukka Police Station, Kasargod AGAINST THE ORDER/JUDGMENTCRMP 1512/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KASARAGOD / I ADDITIONAL MACT, KASARAGODE** **PETITIONER/ACCUSED NO.2:** **MUHAMMED KABEER N.M.,AGED 40 YEARS S/O IBRAHIM N.M, SHAREEFA MANZIL, T.N MOOLA, MUTTATHODY, KASARAGOD - 671123** **BY ADVS. SHAIJAN C.GEORGE VINAI JOHN** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** - **2 STATION HOUSE OFFICER BADIADKA POLICE STATION, KASARAGOD, PIN – 671551 BY SR.PP SMT.SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/10/2022, ALONG WITH Bail Appl..6263/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.6263 & 6306 of 2022 3 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **B.A. Nos.6263 & 6306 of 2022** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of October, 2022 ## **ORDER** These are applications for regular bail. 2. The petitioner in B. A. No.6263/2022 is accused No.4 in Crime No.171/2022 of Kasaragod Police Station alleging commission of offence punishable under Section 22(b) (ii) (C) read with Section 29 of the Narcotic Drugs and Psychotropic Substance Act and under Section 179 ( 1 ) of M.V. Act. 3. The prosecution allegation is that, on 04.02.2022, while the Sub Inspector of Police attached to Kasargod Police Station along with his party was conducting law and order patrolling and vehicle checking from 16.00 hrs, they have seen an auto-rickshaw at 20.40 hrs. at a place Chowki in Kudlu village sped in an enormous speed. Though he signaled to stop the auto-rickshaw, it has not stopped but proceeded forward. Hence the police party chased the auto-rickshaw, and while it stopped BA Nos.6263 & 6306 of 2022 4 near the railway track, they intercepted the persons who were trying to escape from the auto-rickshaw. The auto-rickshaw was searched and found 2 plastic sacks, and on examination, it was found that those sacks contain Ganja coming to the quantity of 22.300 kilograms. The said contraband was seized under Mahazar, the above said persons were arrested. As per the version of the prosecution, the petitioner was implicated as the 4[th] accused in the above crime as per the confession by the 1st accused and on examining the Call Details Record (CDR) of the phone. To explain further regarding the complicity of the petitioner, it is claimed by the prosecution that on examining the CDR, accused No.3 has contacted the petitioner (A4) from his phone many times, and the petitioner has contacted the 3[rd] accused to his phone. The petitioner has supplied ganja, planned, helped and arrangements were made for commission of the offence. 4. In B. A. No.6306/2022, the petitioner is accused No.2 in Crime No.202/2022 of Badiadka Police Station alleging commission of offence punishable under Section 22(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act. The prosecution allegation against the petitioner is that on 05.02.2022, at 8.45 hours, based on the confession statement of the 1[st] accused in Crime No.171/2022 of Kasaragod Police BA Nos.6263 & 6306 of 2022 5 Station, the Sub Inspector of Police, Badiadka Police Station has seized 22.3 Kg of ganja. It is seen that the 1[st] accused in Crime No.171/2022 in which the petitioner is the 4th accused, was questioned and he gave a statement to the effect that he has concealed contraband in his residence within the jurisdiction of Badiadka Police Station and the Badiadka Police conducted a search and seized 22.3 Kgms of ganja from the residence of the 1[st] accused and registered the present crime. 5. It is the case of the petitioner that on tracing the location of the petitioner, which was found to be Andhra Pradesh, he was arrested from there and brought to Kasaragod Police Station along with his car on 09.02.2022 and thereafter he is in custody from 10.02.2022 onwards. It is the further case of the petitioner that when the 1[st] accused was in custody in Crime No.171/2022, the police recorded his confession and obtained further information that he has concealed the contraband articles in his residence within the jurisdiction of Badiadka Police Station and the said information was transmitted to Badiadka Police Station and the Police party conducted a search in the residence of the 1[st ] accused and has seized 22.300 kgs of ganja on 05.02.2022 and Crime No.202/2022 of Badiadka Police Station was registered arraying the petitioner as accused No.2. It is also submitted by the petitioner that he was further implicated BA Nos.6263 & 6306 of 2022 6 in another crime, Crime No.811/2021 by the Adhur Police, Kasaragod District. The petitioner's case is that he has been falsely implicated in the present crime as well as the other two crimes, with ulterior motives and a part of the conspiracy to efface him from the field of fish marketing by the established competitors with the help of higher ups in police. It is also submitted that the petitioner is a fish merchant who was working abroad earlier and thereafter had set up a business in his native place. In connection with the fish vending business, he used to travel to Goa, Visakhapatnam, Andhra Pradesh etc. and he has purchased a Mahindra Pick Up Van for transportation of fish from the above places. The 3[rd] accused in the present crime is a driver and the petitioner had in rare occasions hired him to drive his pickup Van to bring fish from the point of purchase. But, it is the case of the petitioner that accused No.3 is not a regular employee of the petitioner and he was hired as and when required. The petitioner's specific case is that he has been implicated in the above said crime solely based on the confession statement by the coaccused and further that he had telephonic contacts with the other accused on several occasions. It is submitted that going by the Judgment in _**Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1]**_ , the statement given by the co-accused is totally inadmissible. The petitioner also relies BA Nos.6263 & 6306 of 2022 7 on the Judgment in _**State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta and Another[2022 SCC OnLine SC 47**_ ] to contend that the statement of the co-accused and the CDR details are not to be looked into at the time of consideration of bail application and therefore, he is entitled for bail. Relying on the order passed by the Sessions Court, Kasaragod in Crl. M.P.No.1921/2022 (Crime No.202/2022), the petitioner further submits that in similar circumstances, the Sessions Court has granted bail. Though the petitioner moved an application for bail before the Sessions Court, Kasaragod, the same was rejected as per Annexure 8 order. It is further submitted by the petitioner that the final report is already laid and his continued detention is not required for the purpose of investigation. In B.A. No.6306/ 2022, the petitioner reiterated the very same contentions that were taken in B.A.6263/2022. 6. The learned Public Prosecutor seriously opposed these applications for bail mainly contending that the petitioner has an active role in the commission of the offence. In BA No. 6263/2022, it is submitted that on 04.02.2022, while on patrol duty, the Police party intercepted an auto rikshaw bearing Registration No. KL-14L-2060 and seized 22.3 kgs of ganja and accused Nos. 1 to 3 were arrested on the spot. As per the statement given by the 1[st] accused, it is the petitioner BA Nos.6263 & 6306 of 2022 8 herein who had supplied the contraband articles to accused Nos.1 to 3 and the petitioner is actively involved in the conspiracy of bringing ganja to the State for sale. It is the further case of the prosecution that the CDR of the phone was verified and it was revealed that the petitioner has continuous contact over phone with the 2[nd] and 3[rd] accused. It is also seen that the petitioner was arrested from Andhra Pradesh along with his car on 09.02.2022. In BA No. 6306/2022 based on the confession statement of the 1st accused in Crime No. 171/2022 of Kasaragod Police station, 22.3 Kg of Ganja was seized from the house of the 1st accused and Crime No.202/2021 was registered by the Badiadka Police Station and as per the confession statement and the call details, all the accused were in constant contact and the contraband was given to the 1[st] accused by the petitioner and the 3[rd] accused. It is further submitted by the learned Public Prosecutor that the petitioner is involved in two other crimes of similar nature, i.e., Crime No.202/2022 of Badiadka Police Station and Crime No.811/2021 of Adhur Police Station. 7. The learned counsel for the petitioner relies on the Judgment in _**Tofan Singh's case** (Supra_ ), which held that solely based on the confession statement of the co-accused, cannot be used as evidence against the petitioner. It is the case of the prosecution that they not only BA Nos.6263 & 6306 of 2022 9 rely on the confession statement of the co-accused to bring the petitioner in the alleged crime but also on other evidence collected during the investigation. It is the case of the prosecution that the petitioner was arrested from Andhra Pradesh and he played an active role in the commission of the offence. Even though the specific defence of the petitioner is that his presence in Andhra Pradesh was in connection with fish business, no proof has been produced to substantiate the same. Therefore, the contention of the petitioner that he was at Andhra Pradesh in connection with his business is an aspect which is to be considered at the time of trial and not at this stage. Moreover, on verification of the CDR details, the petitioner has direct contact with the other accused involved in the crime. Therefore prima facie, I am not in a position to accept the contention of the petitioner that the petitioner has been roped as an accused solely on the confession statement of the co-accused. As regards the judgment in _**State by (NCB) Bengalur**_ 's case _(Supra),_ it is seen that it is a case against an appeal filed before the Apex Court granting bail to the accused. In the said case, the Apex Court has only observed that the CDR details etc. are matters to be examined at the stage of trial and in the said circumstances, the Court has declined to interfere with the order granting bail to the petitioners therein. The facts of BA Nos.6263 & 6306 of 2022 10 the said case are totally different from the present cases. The Apex Court in _**Union of India v Md. Nawas Khan, 2021 (10) SCC 100**_ has held that the absence of possession of contraband on the person will not absolve them of the level of scrutiny required under Section 37 of the NDPS Act. It was further held in the said judgment that CDR analysis of the mobile phones which show regular touch with the other accused is a relevant factor to be considered at the time of consideration of bail application. It is seen that the petitioner is altogether involved in 3 NDPS cases. In the present cases, I am of the prima facie opinion that other than the confession statement of the co-accused there are other materials to connect the accused with the alleged crime, though of course, the veracity and acceptability of those materials are all matters to be considered at the time of trial. In BA No. 6263/2022, the specific case of the prosecution is that petitioner was in constant contact over phone with accused Nos. 1 to 3 and conspired and that the contraband was supplied to the other accused by the petitioner whereas the specific contention of the prosecution in BA No. 6306/2022 is that the contraband was entrusted to the 1[st] accused by the petitioner and the 3[rd] accused. 8. Admittedly, commercial quantity of contraband is involved in both the cases. The petitioner is involved in three NDPS cases. Therefore, the BA Nos.6263 & 6306 of 2022 11 rigor of Section 37 will definitely come into play. Petitioner could not substantiate with cogent reason that the twin conditions under Section 37 are satisfied so as to grant bail to the petitioner. Therefore, I am not inclined to grant bail to the petitioner. 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** sm/