Muraleedharan Unni K.N. v. State of Kerala & Superintendent of Customs, Air Customs, Nedumbassery

B.A. No. 671/2023 ..1.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944** **BAIL APPL. NO. 671 OF 2023** **AGAINST CUSTOMS FS NO. S14/95/2022 OF NEDUMBASSERY AIR** ## **CUSTOMS** ## **PETITIONER/ACCUSED:** **MURALEEDHARAN UNNI K.N., AGED 56 YEARS, S/O LATE M S NAIR, PADAMA NIVAS, MANATHUMANGALAM, PERINTHALMANNA, MALAPURAM679322, NOW RESIDING AT RAJI NIVAS, OPP. GOPALAKRISHNA TEMPLE, KALVAKULAM, PALAKKAD, PIN - 678001** **BY ADVS. M/S.V.A.VINOD, GOPIKRISHNAN R. & JEWEL PAUL** ## **RESPONDENTS/STATE AND COMPLAINANT:** - **1 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031.** - **2 SUPERINTENDENT OF CUSTOMSM AIR CUSTOMS, OFFICE OF ADDITIONAL COMMISSIONER OF CUSTOMS, COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, ERNAKULAM, PIN – 683585.** **BY SREELAL WARRIER, SPL PP FOR CUSTOMS** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A. No. 671/2023 ..2.. ## **A. BADHARUDEEN, J. ------------------------------------B. A. No. 671 of 2023 ------------------------------------Dated this the 3[rd] day of March, 2023** ## **O R D E R** This is an application for Regular Bail filed by the 1[st] 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 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 B.A. No. 671/2023 **==> picture [19 x 9] intentionally omitted <==** 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 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 B.A. No. 671/2023 **==> picture [19 x 9] intentionally omitted <==** 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 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 B.A. No. 671/2023 **==> picture [18 x 8] intentionally omitted <==** 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 substance by the 1[st] accused/ petitioner herein and also the intended payment of the Cash held by her to the 1[st] accused, all conforming in the involvement of the 1[st] 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. 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 B.A. No. 671/2023 **==> picture [19 x 9] intentionally omitted <==** knowledge that the same is Heroin, a Narcotic Drug and Psychotropic Substance, and he intended to entrust the same to the 2[nd] 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 2[nd] accused Ms. Ukamaka, an African national. Accordingly, the petitioner as well as the 2[nd] 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 provided therein, bail cannot be considered. 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 B.A. No. 671/2023 ..7.. 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.--_ _(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 B.A. No. 671/2023 **==> picture [20 x 9] intentionally omitted <==** 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 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 B.A. No. 671/2023 **==> picture [19 x 9] intentionally omitted <==** 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 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), B.A. No. 671/2023 ..10.. 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. 15. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, this application for regular bail at the instance of the petitioner must fail. B.A. No. 671/2023 **==> picture [22 x 7] intentionally omitted <==** Hence the above Bail Application stands dismissed. **Sd/-** **A. BADHARUDEEN, JUDGE** MMG B.A. No. 671/2023 ..12.. ## **APPENDIX OF BAIL APPL.NO.671/2023** ## **PETITIONER'S ANNEXURE:** **ANNEXURE 1 COPY OF THE ORDER IN CRL.M.C NO 2841/2022 DATED 07.01.2023 OF HON'BLE ADDITIONAL SESSIONS COURT-II, ERNAKULAM**