Muhammed Shabeeb Mon P v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 1[ST] DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944** **BAIL APPL. NO. 2681 OF 2022** ## **PETITIONERS:** MUHAMMED SHABEEB MON P AGED 24 YEARS S/O.ABDUL NASAR, 1/399, PAREDATH HOUSE, PERUMANNA, VALAKKULAM P.O., MALAPPURAM DISTRICT , PIN - 676508 BY ADV BABU S. NAIR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER KALPAKANCHERY POLICE STATION, MALAPPURAM DISTRICT , PIN - 676551 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.2681/2022 2 ## **ORDER** This is the second bail application filed by the 1[st] accused in Crime No.139/2021 of Kalpakanchery Police Station, Malappuram District which has been registered alleging commission of offences punishable under Sections 22(C), 20(b)(ii)A r/w. Section 29 of the Narcotic Drugs and Pshycotropic Subtances Act, 1985 (hereinafter referred to as the NDPS Act). 2. The prosecution case in brief is that on 22.5.2021, the petitioner along with accused Nos.3 to 5 were found sitting in a car and the 2[nd] acused was found sitting on a motorbike near the car and upon a search, the petitioner/1[st] accused was allegedly found in possession of 85 gram of MDMA and 100 grams of Ganja. Further quantity of 12 grams of MDMA was allegedly recovered from the possession of the 2[nd] accused, who was sitting on the motor bike. The earlier bail application filed by the petitioner was rejected by me by order dated 3.3.2022 in B.A.No.10064/2021. 3. Sri. Babu. S. Nair, the learned counsel for the petitioner would submit that the petitioner has been in custody from 22.5.2021. It is submitted that accused Nos.3 and 4 have already been granted bail by this Court through order dated 13.10.2021 in B.A.No.6647/2021. It is submitted that filing of the final report in this case should not be B.A.No.2681/2022 3 treated as a complete report as the said report was not accompanied by the report of chemical analysis which alone would establish that the drug in question is indeed MDMA. It is submitted that going by the view taken by this Court in _**Sameer**_ v. _**State of Kerala; 2021 (5) KHC 338,**_ the filing of a final report in the facts of the present case without the copy of the chemical analysis report establishes that the petitioner was entitled to statutory bail. The learned counsel also states that without establishing that the drug in question was MDMA, as alleged by the prosecution, the petitioner could not have been treated as having committed an offence punishable under Section 22(C) of the NDPS Act. It is submitted that in several cases where the prosecution alleges that the contraband was MDMA, it has been later found that the contraband is actually some other substance. 4. Sri. C.K. Suresh, the learned Senior Public Prosecutor vehemently opposes the grant of bail. Firstly, it is submitted that after the filing of the final report, an FSL report has been obtained by the prosecution which establishes that the substance recovered from the possession of the petitioner was Methamphetamine (in commercial quantity). It is submitted that the petitioner is clearly not entitled to bail in terms of the law laid down in _**Sameer (supra)**_ . It is submitted that in _**Shino Paul and others**_ v. _**State of Kerala and others;**_ B.A.No.2681/2022 4 _**2010(1) KHC 469**_ , this Court had taken the view, referring to an earlier judgment of this Court in _**Kamalaksha**_ v. _**Sub Inspector of Police and another; 2007(1) KHC 122**_ , that even if a final report is not accompanied by a certificate of chemical analysis, the report cannot be taken as an incomplete report entitling the petitioner to statutory bail. It is submitted that the offence involves commercial quantity of narcotic drugs and the petitioner is clearly not entitled to bail as the rigour of Section 37 applies. It is submitted that, in _**Saharath V.P**_ . v. _**State of Kerala; 2021 KHC 5061**_ , this Court, on consideration of the provisions of Section 167(2) Cr.P.C. and Section 439 of Cr.P.C., clearly came to the conclusion that even where a final report is filed without producing all the documents in support of the report, that does not mean that the accused is entitled to statutory bail. It is submitted with reference to the judgment of the Supreme Court in _**Dinesh Dalmia**_ v. _**C.B.I; 2007 KHC 5701**_ that the benefit of Section 167(2) will be available only when the investigation is kept pending and a final report is not filed. It is submitted with reference to the judgment of the Supreme Court in _**Central Bureau of Investigation**_ v. _**R.S. Pai; 2002 KHC 403**_ that there is no prohibition in Section 173 Cr.P.C. which would indicate that the final report must include all the documents that are relied upon and there is no prohibition in B.A.No.2681/2022 5 producing additional documents at a later stage. It is submitted with reference to the judgment of the Supreme Court in _**State of Maharashtra**_ v. _**Sharadchandra Vinayak Dongre and others; 1995 KHC 732**_ that even if a Police Officer terms his report as 'incomplete', the same does not take away the power of the Magistrate before whom it is placed to take congnizance of offence, if there are sufficient materials placed to take cognizance. It is submitted with reference to the recent judgment of the Supreme Court in _**Serious Fraud Investigation Office**_ v. _**Rahul Modi and others; 2022 KHC 6151**_ that the question of statutory bail arises only when a charge sheet is not filed. A specific reference is made to paragraph 9 which reads as follows:- _“_ _**9.** The issue is squarely covered by a judgment of this Court in_ _**Bhikamchand Jain** (supra), as contended by the Appellant. It is necessary to closely examine the judgment passed in_ _**Bhikamchand Jain** (supra). The petitioner in the said case was arrested on 11.03.2012 on the allegation of misappropriation of amounts meant for development of slums in Jalgaon City. The petitioner therein was accused of committing offences punishable under Sections 120-B, 409, 411, 406, 408, 465,466, 468, 471, 177 and 109 read with Section 34, IPC and also under Sections 13(1) (c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The contention of the petitioner therein was that he could not have been remanded to custody in view of cognizance not being taken for want of sanction within the statutory period of 90 days. The scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, according to this Court in_ _**Bhikamchand Jain** (supra). This Court held that in the event of investigation not being_ B.A.No.2681/2022 6 _completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. This Court was of the firm opinion that if on either the 61st day or the 91[st] day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. However, once the chargesheet was filed within the stipulated period, the right of the accused to statutory bail came to an end and the accused would be entitled to pray for regular bail on merits. It was held by this Court that the filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial.During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2). Acknowledging the fact that an accused has to remain in custody of some court, this Court concluded that on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court.”_ 5. Having heard the learned counsel for the petitioner and the learned Senior Government Pleader, I am clearly of the view that the petitioner is not entitled to bail. The petitioner has been accused of having committed an offence involving commercial quantities of narcotic drug. This is so notwithstanding the fact that the drug was found to be Methamphetamine and not MDMA, on chemical analysis. When commercial quantities of narcotic drug are involved in a case, the B.A.No.2681/2022 7 rigour of Section 37 of the NDPS Act will apply. Section 37 of the NDPS Act provides that when the Public Prosecutor opposes an application for bail in a case involving commercial quantities of narcotic drug, the accused is entitled to bail only if the twin conditions mentioned in Section 37 are satisfied. These conditions are that the Court must have reasonable grounds to believe that the accused is not guilty of the offence alleged against him and that the Court must also be satisfied that the petitioner is unlikely to indulge in similar offences if he is granted bail. In the facts and circumstances of this case, even if I were to hold (on the ground that no criminal antecedents are reported against the petitioner) that the petitioner is unlikely to involve himself in similar offences, if granted bail, there is absolutely no material which would enable me to reach a conclusion that there are reasonable grounds to believe that the petitioner is not guilty of the offences alleged against him. In the facts of the present case, the prosecution alleges that a seizable quantity of a dangerous narcotic drug was recovered from the petitioner. This Court granted bail to accused Nos.3 and 4 taking the view that there was no recovery of any quantity of drug from them. This fact is not so in the case of accused Nos.1 and 2. Therefore, the petitioner is clearly not entitled to bail. 6. Then, the only other question is whether the petitioner is B.A.No.2681/2022 8 entitled to statutory bail in the light of the fact that the final report in this case was filed without a copy of the FSL report. The argument of the learned counsel for the petitioner with reference to the law laid down by this Court in _**Sameer (supra)**_ must necessarily fail. In _**Sameer (supra)**_ this Court took the view that where the entire prosecution case depends on the analysis report and the final report is filed without the analysis report, the accused may be entitled to statutory bail notwithstanding the filing of the final report. However, it is clear from a reading of _**Sameer (supra)**_ that each case has to be decided with reference to the facts obtaining in them and there is no absolute rule that non-filing of the analysis report along with final report should be treated as a case of non-filing of the final report entitling the accused to statutory bail. The law laid down by the Supreme Court in _**Serious Fraud Investigation Office (supra)**_ clearly establishes that the crucial aspect is whether a final report has been filed following investigation. The findings of the Supreme Court in that case which have been extracted above when read along with the law laid down by the Supreme Court in _**Dinesh Dalmia (supra)**_ clearly leads me to conclude that non-filing of the analysis report along with final report does not entitle the petitioner to seek statutory bail. Further it is clear from the judgment of the Supreme Court in _**R.S. Pai**_ B.A.No.2681/2022 9 _**(supra)**_ that there is no bar in terms of Section 173 of Cr.P.C. to file additional documents after the charge sheet is submitted. In the facts of the present case, following filing of the final report, an analysis report has been received from the Forensic Science Laboratory, which indicates that the substance seized is not MDMA as originally alleged. However nothing turn on this fact, as the substance which turns out to be Methamphetamine is still in commercial quantities. For all these reasons, I hold that the petitioner is not entitled to statutory bail merely on account of the fact that the final report filed in this case was so filed without the chemical analysis report. The bail application will stand dismissed. Sd/- **GOPINATH P. JUDGE** acd