Narcotics Control Bureau, Kochi v. Muhammed Shareef

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 26[TH] DAY OF APRIL 2022 / 6TH VAISAKHA, 1944** ## **BAIL APPL. NO. 79 OF 2022** **NARCOTICS CONTROL BUREAU, KOCHI, ERNAKULAM** **CRIME NO.5 OF YEAR 2021** ## **APPLICANT/ACCUSED NO.2** **1 MUHAMMED SHAREEF AGED 28 YEARS BANNUR HOUSE, MADHUR P.O, MADHUR KASARGOD, PIN – 671124** **BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU SHIFNA MUHAMMED SHUKKUR MAMATHA S. ANILKUMAR ANILA T.THOMAS** ## **RESPONDENT/COMPLAINANT:** **1 NARCOTICS CONTROL BUREAU, COCHIN NCB COCHIN, KAKKANAD ERNAKULAM, PIN – 682037 REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031** **BY ADV. SRI. K.R.RAJAGOPALAN NAIR (PERUMBAVOOR), SC, NCB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A. NO.79 OF 2022 2 ## **ORDER** ## **Dated this the 26[th ] day of April, 2022** This is an application filed under Section 439 of Code of Criminal Procedure seeking regular bail. 2. The petitioner is the accused No.2 in OR No.5/2021 of Narcotics Control Bureau, Sub Zone, Kochi. The offences alleged against the petitioner are under Sections 20(b)(ii)(C), 23(c), 28 and 29 of the NDPS Act. 3. The prosecution case in short is that the petitioner along with accused Nos.1 and 3 hatched a conspiracy and procured 3.5 kgms of Hashish oil from Andhra Pradesh and it was transmitted on 08.09.2021 through A.W. Courier Service, Ernakulam through F.L. Logistics Pvt. Ltd., Kozhikode in contravention of NDPS Act and Rules and thereby committed offences. 4. The learned Counsel for the petitioner Sri.John Sebastian Ralph submitted that the petitioner is absolutely innocent and he has been falsely implicated in the case. He further submitted that there are no B.A. NO.79 OF 2022 3 materials to connect the petitioner with the alleged crime and hence, the rigor of Section 37 of the NDPS Act would not be attracted. 5. On the other hand, the learned Standing Counsel for the NCB, Sri.K.R. Rajagopalan Nair submitted that there are materials on record to show that the contraband was procured by the petitioner along with the remaining accused following a conspiracy hatched by them. The learned Counsel further contended that since the quantity involved is a commercial quantity, there is a bar under Section 37 of the NDPS Act to grant bail to the petitioner. 6. I have perused the case records. The case records would show that on 10.09.2021 at about 6.30 pm an information was received by NCB, Kochi from A.W. Courier and Cargo, Kaloor to the effect that one courier parcel suspected to contain narcotic items reached the Courier Office. Immediately, on the basis of instructions of the Superintendent, a team of officers of NCB, Kochi reached A.W. Courier and Cargo Office and examined the B.A. NO.79 OF 2022 4 suspected courier parcel and found that it contained among other things 3.5 kgms of Hashish Oil. On examination of the records in the courier office, it was found that the parcel was booked by the first accused. The consignee was one Davood Rayammarakkal Shamsudheen at Bahrain. Accordingly, the Crime was registered against the first accused. On further investigation it was found that, the contraband article seized was procured by the first accused along with the second and third accused from Andhra Pradesh. Accordingly, they were arrayed as accused Nos.2 and 3. 7. Admittedly, there is no seizure from the petitioner. The learned Standing Counsel for NCB submitted that there are materials to show that the first accused travelled along with the petitioner to Andhra Pradesh and procured the contraband article. The learned Counsel submitted that the investigation revealed that the petitioner has transferred a sum of `85,000/- (Rupees Eight five thousand only) to the account of the first accused on three different occasions. B.A. NO.79 OF 2022 5 The learned Counsel further submitted that the investigating agency has also collected materials to show that the petitioner and the first accused together resided at a hotel at Calicut on 28.08.2021. These circumstances were highlighted by the learned Standing Counsel to show that there was conspiracy. 8. The learned Counsel for the petitioner admitted that the petitioner and the first accused are friends. He further admitted that the petitioner had travelled along with the first accused to Andhra Pradesh as his driver. He also admitted that the petitioner has transferred an amount of `85,000/- (Rupees Eight five thousand only) to the account of the first accused. But according to him, that is as a part of some personal money deal between them. 9. This is a case where the petitioner has come forward with a fair case that he and the first accused were friends. He has even admitted that he travelled along with the first accused to Andra Pradesh. For the simple reason that the petitioner has travelled along with B.A. NO.79 OF 2022 6 the first accused to Andhra Pradesh as a driver, it could not be presumed that the contraband article was procured by the first accused from Andhra Pradesh with the knowledge or connivance of the petitioner. 10. The learned Standing Counsel further submitted that confession of the first accused was recorded and he admitted that he along with the petitioner and third accused procured the contraband article. It is trite that the statement recorded under Section 67 of the NDPS Act is inadmissible _**[Tofan Singh vs. State of Tamil Nadu (2020 6 KHC 111)]**_ . The two circumstances highlighted by the learned Standing Counsel for the NCB that the petitioner has transferred `85,000/- (Rupees Eight five thousand only) to the first accused and that the petitioner and the first accused resided together in a hotel at Calicut are insufficient to presume that the petitioner has hatched a conspiracy with the first accused to commit the offence. Apart from this, no materials have been collected by the investigating agency so far, to connect the petitioner B.A. NO.79 OF 2022 7 with the crime. The petitioner is in custody since 05.10.2021. 11. For the reason stated above, I am of the view that the rigor of Section 37 of NDPS Act will not be applicable to the petitioner. Considering all these circumstances, I hold that the petitioner can be released on bail on conditions. In the result, the application is allowed on the following conditions:- (i) The petitioner shall be released on bail on executing a bond for `1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court. (ii) The petitioner shall fully co-operate with the investigation. (iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner shall also appear before the investigating B.A. NO.79 OF 2022 8 officer as and when required by him. (iv) The petitioner shall not commit any offence of like nature while on bail. (v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. (vi) The petitioner shall not leave State of Kerala without the permission of the trial Court. **Sd/-** ## **DR. KAUSER EDAPPAGATH** **JUDGE** SKP/26.04 B.A. NO.79 OF 2022 9 ## **APPENDIX OF BAIL APPL. 79/2022** **PETITIONER'S ANNEXURES: ANNEXURE1 CERTIFIED COPY OF THE ORDER DATED 25.11.2021 IN CRL.M.C NO. 2404/2021 ON THE FILES OF HONBLE SESSIONS COURT, ERNAKULAM** **RESPONDENTS' EXHIBITS: NIL** ## **TRUE COPY** **P.A.TO JUDGE**