Nishad v. State of Kerala & Narcotics Control Bureau (Bail Applications Nos. 4182/2022 & 5092/2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 BAIL APPL. NO. 4182 OF 2022** **CRIME NO.7/2021 OF NARCOTIC CONTROL BUREAU, THIRUVANANTHAPURAM,** ## **Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **NISHAD AGED 26 YEARS, S/O SULFI , NIZAR MANZIL, PERUMATHURA SARKARA CHIRAYINKEEZHU THIRUVANTHAPURAM 695303** **BY ADV M.R.SARIN** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ,PIN 682031 2 INTELLIGENCE OFFICER NCB SUBZONE KOCHI 682037.** ## **BY ADV.K.R.RAJAGOPALAN NAIR, SC FOR NCB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.10.2022, ALONG WITH Bail Appl..5092/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944** **BAIL APPL. NO. 5092 OF 2022** **CRIME NO.7/2021 OF NARCOTICS CONTROL BUREAU, KOCHI, Ernakulam PETITIONER/2ND ACCUSED:** **MAHEEN. A., AGE 24, S/O. AMANULLA, THERUVIL THAIVILAKAM, PERUMATHURA, SARKARA, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT.** **BY ADV SHAJIN S.HAMEED** ## **RESPONDENT/COMPLAINANT:** **THE INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, SUB-ZONE, COCHIN. PIN CODE:-682042.** **BY ADV K.R.RAJAGOPALAN NAIR, SC FOR NCB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.10.2022, ALONG WITH Bail Appl..4182/2022, 6578/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.4182 & 5092 of 2022 3 ## **VIJU ABRAHAM, J.** **................................................................. B.A.Nos. 4182 & 5092 of 2022 .................................................................** Dated this the 10[th] day of October, 2022 ## **ORDER** These are applications for regular bail. 2. The Petitioner in BA No. 4182/2022 is the 1st accused and the petitioner in BA No. 5092/2022 is the 2nd accused in Crime No. 7/2021 of NCB Kochi, Ernakulam wherein they are alleged to have committed offences punishable under Sections 8(c) r/w 21(a), 22(c), 28(A), 28 and 29 of Narcotics Drugs and Psychotropic Substances Act. 3. It is alleged that the crime was detected by Intelligence Officer, Narcotic Control Bureau Sub Zone, Cochin. The allegation put forward is that on 15/11/2021 at around 17.40 hrs, the Intelligence Officer received an information that a parcel sent through DTDC courier from Bengaluru to Trivandrum having consignment no. B96330459 is suspected to contain Narcotics/Psychotropic drugs. The information was reduced into writing and submitted before the Superintendent, NCB Sub Zone, Cochin. Based on the said information, a team of officers on 16/11/2021 at 10.10 hrs reached at Mangalssery Associate (franchise of DTDC Courier), Pulimoodu Junction, Chirayinkeezhu, Thiruvananthapuram. The BA Nos.4182 & 5092 of 2022 4 Intelligence Officer introduced himself to the proprietor of Mangalssery Associate. He then enquired and confirmed about the suspicious parcel. At about 10.30 hrs, the 1st accused who is the consignee reached the place and received the consignment. Immediately, the NCB team surrounded and detained him with the green color parcel. It is alleged that on opening the bag they found a white color transparent polythene cover containing white color crystal powder suspected to be a psychotropic substance, 2 numbers of white transparent zip cover containing white color powder suspected to be a psychotropic substance and a white transparent zip cover containing 01 blot of 25 numbers of small stamps embedded with lord shiva photo suspected to be LSD. The said substances were tested with the help of Drug Detection Kit and it showed positive results of ‘Amphemetamine’, ‘Methaqualone’ and LSD. On weighing the substances, it was found 242 gms of Amphemetamine, 860 mgm of Methaqualone and 410 mgms of LSD. 4. Petitioner in BA No. 4182/2022 submits that he has been falsely implicated in the above-said crime. He reached the courier agency on an intimation that a parcel had arrived in his name. He is not aware who has sent this parcel and somebody has deliberately done it to trap him. Though he moved the court of Sessions seeking bail the same was rejected by Annexure A1 and A2 orders. Petitioner has also produced Annexures 3 to 5 in support of his contention whereas the BA Nos.4182 & 5092 of 2022 5 petitioner in BA No. 5092/2022 also submits that he has been falsely implicated. There are no material to connect the petitioner with the alleged commission of offence other than the alleged confession statement of the 1st accused, which is totally inadmissible in view of the judgment of the Apex Court in **Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1** . Petitioner submits since there is no material to connect him with the crime, he is entitled for bail and to substantiate the same, the petitioner relies on judgment in **Muhammed Ameen and another v.** **NCB Kochi, 2020 (1) KHC 645.** 5. The respondent NCB has filed a statement in BA No. 4182/2022 mainly contending that Methamphetamine hydrochloride, cocaine hydrochloride, and LSD are the contraband seized. The quantity of contraband seized is of commercial quantity. On 16.11.2021 around 10.30 hours consignee petitioner reached the Mangalssery Associate (Franchise of DTDC Courier), Pulimoodu Junction Chirayinkeezhu, Trivandrum, Kerala to receive the consignment, the NCB team surrounded the receiver of the parcel and detained him along with the green colour parcel which he was holding and on opening the parcel it was found that a white color transparent polythene cover containing white color crystal powder, 02 Numbers of white transparent Zip cover containing white color powder suspected to be a Psychotropic substance and a white transparent Zip cover containing 01 blot of 25 numbers of small stamps embedded with lord Shiva photo suspected to BA Nos.4182 & 5092 of 2022 6 be LSD. The investigation reveals that the petitioner on the instructions of Maheen A (A-2), had procured, possessed, and received the seized contraband, and entered into criminal conspiracy with him and, Noble Norbert (A-3) and Nihas (fake name as Manasvi Hegde (A-4)) for the illicit trafficking of the seized commercial quantity of contraband having 242 Grams of Methamphetamine hydrochloride, 1.930 grams of Cocaine hydrochloride and 410 Milligrams LSD which were recovered from the possession of the petitioner. It also revealed that the petitioner entered into criminal conspiracy with Maheen A (A-2), and attempted to supply commercial quantity of Narcotics drugs and psychotropic substances to drug users and engaged in peddling drugs for the last two years. Thereby, the petitioner has committed offences in contravention of the provisions of Section 8(c) read with Sec. 21(a), 22(c), 27-A, 28 & 29 of NDPS Act, 1985 (As amended) and punishable u/s 21(a), 22(¢), 27-A, 28 & 29 of NDPS Act, 1985. During NCB custody his voluntary statement was recorded in which he admitted his involvement in this drug trafficking, moreover, he revealed the Bangalore-based drug source as Nihas from Malappuram District, Kerala. Nihas arranged and sent the seized drugs from Bangalore with consignor address as Manasvi Hegde, Mittigana Halli, Bangalore, and consignee address as Nishad S (petitoiner in B.A.No.4182 of 2022) Nizar Manzil, Perumathura P O, Sarkara, Chirayinkeezhu, Thiruvananthapuram, Kerala through DTDC Courier Service. Petitioner BA Nos.4182 & 5092 of 2022 7 and 2nd accused are neighbours and friends and are engaged in peddling and supplying contraband to the drug users in Perumathura area of Thiruvanamthapuram. Maheen(A-2) with the help of 3rd accused Noble Norbert using his Bangalore connection, arranged contraband from Bangalore and used to send it through Courier. 2nd accused Maheen transferred the advance amount to 3rd accused Noble by depositing it to Noble’s SBI account maintained with SBI Pallithura through CDM Machine or through UPI transactions made from the Federal Bank account of Mrs.Vrinda L(A/c. No. 12960100165498), wife of Maheen, the 2nd accused, the account which was connected to the phone number of Maheen. The account statements are produced by the respective Bank officials to the Intelligence Officer which shows that 75 bank transactions were made between 1st and 2nd accused for dealing in contraband. Its also seen from the bank statement that there are 6 bank transactions between 2nd accused and 3rd accused for the purpose of dealing in contraband. 2nd accused received Rs.1000/ and Rs.1500/ to his account frequently which proves his involvement in peddling drugs. Statement of Federal Bank account No. 12170100146841 of the petitioner, statement of Indian Bank account No.7055626080 of the petitioner, and statement of 3rd accused Noble Robert of SBI Pallithura are obtained to prove the transactions. The telephone call records of the petitioner and other accused also substantiate the prosecution case. There are independent witnesses in BA Nos.4182 & 5092 of 2022 8 the above case including Sri. C Murali, Manager of DTDC Courier and Manish Murali, employee who had given statement to the Intelligence Officer, NCB which is not hit by **Tofan Singh** 's case supra. The independent witnesses can substantiate the prosecution case of seizure of the contraband from the petitioner/accused. Since Sec 35 and 54 of the NDPS Act provide for presumption of mental state and presumption of committing of offence and the presumption under NDPS Act will prevail in the above case and onus to disprove the case lies on the petitioner/accused once possession is proved. Hence there is all chance that the petitioner may get an order of conviction after trial and the petitioner cannot be released on bail. The respondent NCB has also filed a statement in BA No. 5092/2022 mainly reiterating the objections taken in the earlier statement and contending that the petitioner is the kingpin and mastermind in committing the offence. The accused were involved in the commercial business of contraband drugs for more than the last two years. It is also stated that the 3rd accused has approached this court seeking bail filing BA No. 6578/2022, and this court has dismissed the same as per order dated 30.09.2022. 6. Since the quantity involved is a commercial one, the rigor of Section 37 of the NDPS Act will come into play. After hearing both sides, this court is of the opinion that the petitioners could not substantiate by cogent reasons that the twin conditions in Section 37 of the Act are satisfied so as to grant bail at this stage. BA Nos.4182 & 5092 of 2022 9 It is also made clear that these prima facie observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits, during the trial. This bail application is accordingly dismissed. Sd/- **VIJU ABRAHAM JUDGE** cks