NIDHIN @ THAMPU v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940** ## **Bail Appl..No. 5546 of 2018** ## **CRIME NO.590/2018 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED NO.3:** **NIDHIN @ THAMPU, AGED 27 YEARS, S/O. RADHA MOHANAN, AMACHALKADAYARA VEEDU, NEAR RAILWAY UNDER PASSAGE, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK.** **BY ADV. JAISON JOSEPH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. 2 INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM-695004.** **BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDER** This application is filed under Section 439 of the Code of Criminal Procedure. 2. The applicant herein is the 3[rd] accused in Crime No.590 of 2018 registered at the Medical College Police Station, Thiruvananthapuram. He along with the rest of the accused are BA:5546/18 2 being proceeded against for having committed offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. According to the prosecution, on 27.4.2018 at about 11.45 a.m., the Inspector of Police, Medical College Police Station received secret information with regard to the possession and sale of narcotic substances by three persons near the Pathology Lab of the Medical College compound. After making the necessary entries, he rushed to the spot along with the Police party. A blue car bearing Reg. No.TN 09 BG 8624 was seen parked in front of the said lab. A search was conducted and 130.550 kgs. of Ganja packed in 60 bundles were found concealed inside the car. The accused were arrested and the contraband articles were seized. Samples were taken and the same was later forwarded for chemical analysis. 4. The learned counsel appearing for the applicant would vehemently submit that the applicant herein has nothing to do with the procurement or seizure of narcotic substances. According to the learned counsel, the father of the applicant herein was admitted for surgery in the Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram, on 23.4.2018, and he was BA:5546/18 3 discharged only on 30.4.2018. The applicant herein was a bystander all through. The learned counsel would refer to Annexure-A2 case summary and discharge record to substantiate his contention. The learned counsel has also referred to AnnexureA3 visiting pass issued to the applicant herein, Annexure-A4 form for Informed Consent, which is dated 24.4.2018, and Annexure-A5 consent for anesthesia services. Reference is also made to Annexures-A6 and A7 and it was contended that the applicant had completed his Diploma in Ayurveda Nursing and Panchakarma in the year 2016 and he has no connection with the illegal activities by accused Nos. 1 and 2. It is further submitted that the applicant herein has been in custody from 27.04.2018 and it is prayed that he be released on bail in view of the long period of incarceration undergone by him. 5. The learned Public Prosecutor has strenuously opposed the prayer. It is submitted that the applicant is the lynch pin and it was at his instance, the accused Nos. 1 and 2 had gone to places proliferated by Maoists in the State of Andhra Pradesh to procure the narcotic substance. It is contended that the CDR details of the accused revealed that they were in constant touch. The 1[st] accused BA:5546/18 4 was dispatched to Andhra Pradesh by the applicant herein to procure the contraband and the CDR details of the 1[st] accused would show that he was in East Godavari District of Andhra Pradesh for the purpose of purchasing the contraband. It is further submitted that the 4[th] accused is a near relative of the applicant herein and it was revealed during investigation that he had a major role to play. The accused Nos. 4 and 5 are yet to be arrested as they are absconding. According to the learned Public Prosecutor, the investigation conducted till date would reveal that on numerous instances applicant has gone to Andhra Pradesh in order to collect the narcotic substances for the purpose of distribution and sale in the State of Kerala. He highlighted the menace of drug trafficking and submitted that if the applicant is enlarged on bail at this stage, the investigation would be adversely affected. Referring to the medical records relating to the father of the applicant, which was produced before this Court, it is submitted that this Court will not be justified in conducting a mini trial to ascertain the genuineness of the documents. The learned Public Prosecutor referred to the decisions of the Apex Court in **State of Madhya Pradesh** v. **Kajad** AIR 2001 SC 3317, **Union of India (UOI)** v. **Shri Shiv Shanker Kesari** [(2007) 7 SCC 798] and **Union of India** v. **Ram Samujh** BA:5546/18 5 **and Another** [(1999) 9 SCC 429] and it is submitted that the release of the applicant in the instant case is not justified as he is a potential threat to the society and if released, he may continue with the activity of trafficking intoxicating drugs. It is urged that the provisions are to be interpreted in a manner so as to provide protection to the society from nefarious activities and antisocial elements. 6. I have considered the submissions advanced and have gone through the materials on record. 7. It is the case of the prosecution that about 130 kgs. of Ganja was seized from the possession of the accused. The main contention advanced by the learned counsel is that the applicant was a bystander of his father at the Medical College Hospital and he had no occasion to involve with the accused Nos. 1 and 2 for the purpose of procurement of Ganja. However, on going through the case diary, prima facie, it appears that the applicant had a definite role to play in the procurement and possession of the huge quantity of cannabis. It also appears that a near relative of the applicant, who is now arrayed as the 4[th] accused, had a major role to play in the procurement of the prohibited substance. Every person who, in BA:5546/18 6 contravention of the provisions of the Act or any Rule made or condition of licence granted thereunder produces, manufacturers, processes, sells, purchases, transports, imports inter-state, exports inter-state or uses cannabis, violates Section 20 (b)(ii)(C) of the Act. After going through the records, I am unable to accept the contention of the learned counsel that the applicant is totally innocent and the allegation against him is frivolous. 8. As held by the Apex Court, the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail, the accused in such cases is not entitled to be enlarged on bail. It is manifest that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds”, which expression 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 BA:5546/18 7 satisfaction that the accused is not guilty of the offence charged. 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. The court also has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. 9. While considering an application for bail, this Court has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence viz, the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications, both at the national level BA:5546/18 8 and also at the international level. 10. Having considered the submissions advanced and having gone through the materials on record, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. The applicant has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. In that view of the matter, I am not inclined to allow this application at this stage. This application will stand dismissed.. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE