Muraleedharan Unni K.N. @ Muraleedharan Unni Kakooth Nair v. Superintendent of Customs, Air Customs, Office of Additional Commissioner of Customs, Cochin International Airport, Nedumbassery, Ernakulam & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 BAIL APPL. NO. 4238 OF 2023** **CRIME NO.114/2022 OF COMMISSIONARATE OF CUSTOMS PREVENTIVE,** **Ernakulam** **AGAINST THE ORDER 03.03.2023 IN Bail Appl. 671/2023 OF HIGH COURT OF KERALA** ## **PETITIONER/ACCUSED NO.1:** MURALEEDHARAN UNNI K.N, @ MURALEEDHARAN UNNI KAKOOTH NAIR, AGED 56 YEARS, S/O LATE M S NAIR, PADAMA NIVAS, MANATHUMANGALAM, PERINTHALMANNA, MALAPURAM, PIN – 679322 NOW RESIDING AT RAJI NIVAS, OPP. GOPALAKRISHNA TEMPLE, KALVAKULAM, PALAKKAD, PIN – 678001. BY ADVS. M.T.SURESHKUMAR P.R.JAYASANKAR MANJUSHA K SREELAKSHMI SABU ## **RESPONDENTS/COMPLAINANT:** 1 SUPERINTENDENT OF CUSTOMS, AIR CUSTOMS, OFFICE OF ADDITIONAL COMMISSIONER OF CUSTOMS, COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, ERNAKULAM, PIN – 683585. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY ADV SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE SENIOR PUBLIC PROSECUTOR K DENNY DEVASSY THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.4238/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================** B.A No.4238 of 2023_ _================================ Dated this the 13th day of November, 2023_ ## _**O R D E R**_ This is the second application for Regular Bail filed by the 1st accused in O.S.No.114/2022 (Customs F.S.No.S14/95/2022 of Nedumbassery Air Customs) where accused Nos. 1 & 2 are alleged to have committed offences punishable under Secs. 21, 23, 28, 29 & 30 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). 2. Heard the learned counsel for the petitioner and also the Special Public Prosecutor for Customs (NDPS Cases) & for Customs Offences, Calicut Airport at Karipur. 3. Precisely, the allegation of the prosecution is that, on the B.A.No.4238/2023 3 basis of information received from the CIAL Security Staff posted at Level 4 baggage screening of the domestic terminal, Cochin International Airport, Nedumbassery, the officers of Air Intelligence Unit, Air Customs had recovered eight numbers of packages of pale yellowish white coloured powder and lumps like substance totally weighing 18029.85 grams, concealed in the cavities of checked-in baggage of one Mr. Muralidharan Unni Kakooth Nair, an International Passenger who had come from Harare via Doha to Cochin by flight No.QR 516 to proceed to New Delhi. The said pale yellowish white coloured powder and lumps like substance was subjected to chemical test using the 'Narcotic Drug Detection Kit' and it was observed that the said substance tested positive for 'Methaqualone', a psychotropic drug which is prohibited under NDPS Act, 1985. Based on the disclosures/ admissions made by Mr. Muralidharan Unni Kakooth Nair vide his Statement dated 21.08.2022 recorded under provisions of Section 67 of the NDPS Act, 1985, as well as recovery and seizure of B.A.No.4238/2023 4 18029.85 grams of the contraband, having reason to believe that Mr. Muralidharan Unni Kakooth Nair has caused illegal import and illicit inter-state export and transshipment of Narcotic drugs and Psychotropic substances into India which is punishable under Section 23 read with Section 8(c) of the NDPS Act, 1985, he was arrested by the Inspector of Customs (Preventive Officer), Air Intelligence Unit, Customs, Cochin International Airport at 9 AM on 22.08.2022 under Section 42 of the said Act after due process, as authorized in this regard. Representative samples of the seized contraband were drawn in presence of the Judicial First Class Magistrate, Angamaly on 23.08.2022 and the same were forwarded to Customs Laboratory, Custom House, Chennai for Qualitative and Quantitative analysis. 4. The further case is that, the lab test report no. CHLCHN/NDPS/2713 to 2720/30.08.2022 dated 31.10.2022 revealed that "The sample is in the form of yellowish-white coloured powder'', answers the tests for the presence of B.A.No.4238/2023 5 Diacetylmorphine (Heroin) and is covered under the NDPS Act and the average purity of Heroin is found to be "72%." The international grey market value of the seized narcotic substance is about Rs.18 Crores. 5. Thereafter, Mr.Muralidharan Unni Kakooth Nair's statement dated 21.08.2022 recorded under Section 67 of the NDPS Act, 1985 and the co-accused, Ms.Ukamaka, was apprehended on 21.08.2022 by the Officers of the O/o Principal Commissioner of Customs (Preventive), New Custom House, Near I.G.I., Airport & Cargo Complex, New Delhi - 110 037. An amount of Rs. 2,20,000/- was also recovered from Ms.Ukamaka by the said Officers which was in conformity with the Statement dated 21.08.2022 of Mr. Muralidharan Unni Kakooth Nair. Subsequently, statement of Ms.Ukamaka was recorded on 21.08.2022 and 22.08.2022 under Section 67 of the NDPS Act, 1985 wherein she has disclosed valid information and involvement of above named Ms. Jennifer and her role in aiding the illicit traffic of the narcotic B.A.No.4238/2023 6 substance by the 1st accused/ petitioner herein and also the intended payment of the Cash held by her to the 1st accused, all conforming in the involvement of the 1st accused. The prosecution case runs on this premise while alleging commission of offences herein above referred by accused Nos. 1 and 2. 6. The learned counsel for the petitioner would submit that the petitioner is innocent and he has no role in the transshipment of the contraband. According to him, he is an employee appointed by Jennifer Griffin and the petitioner is a person engaged in garment business. Further, he obeyed the order of his employer and collected the contraband and therefore, he is innocent since he was not aware that the baggage contained contraband. Accordingly, highlighting his custody from 22.8.2022 and filing of complaint, after investigation, the learned counsel presses for the grant of bail. It is also argued by the learned counsel for the petitioner that now the petitioner needs a surgery and for the said purpose, he may be released on bail. B.A.No.4238/2023 7 7. The learned Special Public Prosecutor representing Customs-DRI would submit that the petitioner herein transported 18 kg of Heroin, which would fetch Rupees Eighteen Crores, with knowledge that the same is Heroin, a Narcotic Drug and Psychotropic Substance, and he intended to entrust the same to the 2nd accused in New Delhi. Since he could not reach New Delhi directly, he alighted at Cochin Airport and when his baggage screening was done by the CIAL security staff at Level 4 baggage, doubting spurious substance inside the bag, the same was inspected and accordingly, the contraband was seized. Therefore, the petitioner is the person who transported the substance, with knowledge that the same is contraband, to entrust the same to the 2nd accused Ms. Ukamaka, an African national. Accordingly, the petitioner as well as the 2nd accused were nabbed and have been in custody. According to the learned Special Public Prosecutor, since the quantity of Heroin is 18 kg, the rigour under Sec.37 would apply and therefore, without satisfying the twin conditions B.A.No.4238/2023 8 provided therein, bail cannot be considered. The learned Public Prosecutor also submitted that the surgery is not so serious in nature and the same can be done at the Government Medical College, Thrissur, as reported by the Superintendent, Sub Jail, . Viyyur 8. In this matter, earlier bail application (B.A.No.671/2023) filed by the petitioner was dismissed as per the observations in paragraph Nos.8 to 14 as under: _“8. On perusal of the copy of the complaint filed by the Superintendent of Customs, Air Intelligence Unit, Air Customs, CIAL, Nedumbassery, the prosecution allegations are well made out and the petitioner could not wriggle out from the clutches of criminal prosecution simply saying that he is only an employee acted under the advise of his employer without knowledge regarding transport of contraband. Since the prosecution records would justify prima facie prosecution allegation involving transport and possession of commercial quantity of contraband, this Court must satisfy Sec.37 before grant of bail._ _9. Indubitably, when the prosecution alleges possession of commercial quantity of contraband, the rider under Sec.37 of the NDPS Act would apply. Sec.37 of the NDPS Act provides as under:_ _“37. Offences to be cognizable and non-bailable.--_ B.A.No.4238/2023 9 _(1) Notwithstanding anything contained in the Code of Criminal Procedure, 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 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 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 sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”_ _10. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail._ _11. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC_ B.A.No.4238/2023 10 _798, Union of India v. Shiv Shankar Kesari and held that the expression ‘reasonable grounds’ 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._ _12. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. 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. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty._ _13. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in Superintendent, Narcotics Central Bureau v. R.Paulsamy [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], Customs, New Delhi v. Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC 3022: (2004) 3 SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], Union of India v. Abdulla [2004 KHC 1992: (2004) 13 SCC 504: 2005 CriLJ_ B.A.No.4238/2023 11 _3115: 2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC 6547: (2008) 6 SCC 721: 2008(2) KLD 316: 2008 (2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576: 2008 CriLJ 3491: (2008) 3 SCC (Cri) 29], Union of India v. Rattan Malik [2009 KHC 4151: (2009) 2 SCC 624: 2009 (2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], Union of India v. Niyazuddin [2017 KHC 4465: AIR 2017 SC 3932: (2018) 13 SCC 738], State of Kerala v. Rajesh [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ 799], Union of India v. Jitentra Giri._ _14. On a plain reading of Section 37(1) (b) and 37(1)(b) (ii) of the NDPS Act, within the ambit of the settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore, satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the Legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients.”_ 9. Now the petitioner seeks bail on medical grounds, after B.A.No.4238/2023 12 producing medical certificate of his choice, issued from the `avitis Hospital’ on the submission that he wants surgery. Annexure-A8 is the medical certificate dated 17.07.2023 produced by the petitioner. The said document would go to show that the petitioner met Doctor Muraleedharan Unni, Department of Gastro-intestinal Disease and he was given some treatment during the period he was released on interim bail (period from 12.07.2023 to 19.07.2023) for attending the marriage of his daughter. In view of the medical urgency or urged, a report was called f from the Superintendent, Sub Jail, Viyyur. Along with the report dated 03.10.2023 of the Superintendent, Sub Jail, Viyyur, treatment certificate issued by Dr.Sethu T.S, Assistant Professor, Department of General Surgery, Government Medical College, Thrissur has been attached, wherein it has been stated as under: _“Muralidharan Nair, 58 yrs Male (UHID_ _No.T113241309230714 dated 13.09.2023) came to Surgery OPD with complaints of history of haemorrhoids, with no active_ B.A.No.4238/2023 13 _bleeding/recent episode of pain or constipation, on examination and after taking detailed history is found to have grade IV hemorrhoid (3’) clock & 7’O clock) with skin tag. He requires an elective open hemorrhoidectomy. Which can be done in Department of General Surgery, Govt.Medical College, Thrissur. After complete pre Anasthetic check up and sigmoidoscopic pre operative evaluation.”_ Thus it appears that the surgery in relation to the petitioner can be done at Government Medical College, Thrissur, and for the said purpose, he could not be released on bail. It is relevant to note that the petitioner, who has been nabbed and detained in custody on the allegation that he was found in possession of commercial quantity of contraband, seeks regular bail and the same is subject to satisfaction of the rider under Section 37 of the N.D.P.S Act. In the facts and circumstances of the case, there is no reason to dilute the rider and the medical urgency urged by the petitioner can be addressed by the Jail Superintendent by giving proper treatment at Government Medical College, Thrissur. 10. In order to expedite the trial, a report of the Special B.A.No.4238/2023 14 Judge (Additional Sessions Judge-II), Ernakulam was called for and as per the report dated 26.10.2023, the learned Judge in-charge reported that the case would be disposed of within 8 months from the date on which the new presiding officer takes charge. The above report is found to be not satisfactory since the witnesses in this case, in fact, are only 16 in numbers. Therefore, there shall be a direction to the learned Special Judge or the learned Judge holding charge of the Special Judge dealing with this case to expedite the trial and dispose of the case within 6 months from the date of receipt or production of a copy of this order. **==> picture [36 x 56] intentionally omitted <==** Accordingly, the Bail Application stands dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.4238/2023 15 ## **APPENDIX OF BAIL APPL. 4238/2023** |PETITIONER'S|ANNEXURES| |---|---| |Annexure A1|TRUE COPY OF THE OCCURRENCE REPORT| ||NUMBERED AS F NO.S 14/95/2022 AIR CUS IN| ||OS NO. 114/2022 OF AIU, COCHIN| ||INTERNATIONAL AIRPORT.| |Annexure A2|TRUE COPY OF THE COMPLAINT FILED AGAINST| ||THE PETITIONER BY THE 1ST RESPONDENT| ||DATED 8/2/2023.| |Annexure A3|TRUE COPY OF THE MAHAZER DATED 21/8/2022| ||PREPARED BY THE INSPECTOR OF CUSTOMS| ||(PREVENTIVE OFFICER).| |Annexure A4|TRUE COPY OF ORDER IN CRL M C NO. 2049| ||OF 2022 PASSED BY ADDITIONAL DISTRICT &| ||SESSION'S COURT II, ERNAKULAM DATED| ||13/10/2022.| |Annexure A5|TRUE COPY OF ORDER IN CRL M C NO. 2841| ||OF 2022 PASSED BY ADDITIONAL DISTRICT &| ||SESSION'S COURT II, ERNAKULAM DATED| ||7/1/2023.| |Annexure A6|TRUE COPY OF ORDER IN BA NO. 671 OF 2023| ||OF THIS HON'BLE COURT DATED 3/3/2023.| |Annexure A7|TRUE COPY OF THE INVITATION CARD| ||EVIDENCING THE DATE OF MARRIAGE OF THE| ||DAUGHTER OF THE PETITIONER.| |Annexure A8|TRUE COPY OF THE TREATMENT SUMMARY| ||REPORT ALONG WITH PRESCRIPTION ISSUED BY| ||DR PEETHAMBARAN M S, SURGEON, DEPARTMENT| ||OF GASTRO INTESTINAL DISEASE, AVITIS| ||HOSPITAL, PALAKKAD DATED 17-7-2023.|