Niyas N v. State of Kerala (BA 3109/2022; BA 3778/2022; BA 3790/2022 in Crime No.1790/2021, Chirayinkeezhu PS)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **BAIL APPL. NO. 3109 OF 2022** **CRIME NO.1790 OF 2021 OF CHIRAYINKEEZHU POLICESTATION** ## **PETITIONER/3RD ACCUSED:** **NIYAS N AGED 24 YEARS KATTILVILA VEEDU, NR DEESANTMUKKU, MUDAPURAM P.O., CHIRAYINKEEZHU , THIRUVANANTHAPURAM -, PIN - 695304** **BY ADVS. V.JOHN MANI JACKSON JOHNY VARGHESE SABU SETHULAKSHMI K.K. DIANA LAURANCE PAUL** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER CHRIRAYINKEEZHU POLICE STATION, ATTINGAL, THIRUVANANTHAPURAM -, PIN - 695304** **BY PUBLIC PROSECUTOR SRI.M.C.ASHI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3778/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3109,3778 & 3790 of 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **BAIL APPL. NO. 3778 OF 2022** **CRIME NO.1790 OF 2021 OF CHIRAYINKEEZHU POLICESTATION** **PETITIONER/2ND ACCUSED:** **SAJEEF MUNNA, AGED 28 YEARS, S/O ABDUL SALAM, AKSHARAM VEEDU, NEAR NES BLOCK, MUDAPURAM DESOM, KIZHUVILAM VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695304** **BY ADVS. M.KIRANLAL SAMEER M NAIR GEETHU KRISHNAN HARSHA SUSAN SAM MANU RAMACHANDRAN T.S.SARATH R.RAJESH (VARKALA)** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682031** ## **OTHER PRESENT:** **SR.PP - SMT. SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3109/2022, 3790/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3109,3778 & 3790 of 2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944 BAIL APPL. NO. 3790 OF 2022** **CRIME NO.1790 OF 2021 OF CHIRAYINKEEZHU POLICESTATION PETITIONER/1ST ACCUSED:** **MUBARAK, AGED 29 YEARS, S/O BASHEER, THOUFIK MANZIL, DECENTMUKKU, MUDAPURAM DESOM, KOONTHALLOOR VILLAGE,THIRUVANANTHAPURAM DISTRICT - 695304** **BY ADVS. M.KIRANLAL R.RAJESH (VARKALA) MANU RAMACHANDRAN T.S.SARATH SAMEER M NAIR GEETHU KRISHNAN HARSHA SUSAN SAM SABIKH MOHAMMED V.S V.M.VISHNU MOHAN** ## **RESPONDENT/COMPLAINANT /STATE:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682031** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3778/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3109,3778 & 3790 of 2022 4 ## **VIJU ABRAHAM, J.** **................................................................. B.A.Nos.3109, 3778 & 3790 of 2022 .................................................................** Dated this the 27[th] day of July, 2022 ## **ORDER** These are applications for regular bail. 2. B.A.No. 3790 of 2022 is filed by the 1[st] accused whereas B.A.No.3778 of 2022 is filed by the 2[nd] accused and B.A.No.3109 of 2022 is filed by the 3[rd] accused in Crime No.1790 of 2021 Chirayinkeezhu Police Station registered alleging commission of offences punishable under Sections 22(b)(ii)(B), 22(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. Prosecution allegation is that on 24.09.2021 at about 16.50 hours, the accused persons were found in possession of 63.60 grams of MDMA kept in the residence of 1[st] accused and 2.100kgs of ganja kept in the Maruti Alto car bearing Registration No. KL-16-L-2419 parked in front of the house. ## **B.A.Nos.3790 & 3778 of 2022** 4. The case of the petitioners/accused Nos.1 and 2 is that the house from which the alleged psychotropic substance and the narcotic drug were seized does not belong to them. The said house, though taken on rent was not occupied by the 1[st] accused for the reason that his wife BA Nos.3109,3778 & 3790 of 2022 5 was admitted in hospital for delivery. The petitioners have no knowledge about the things which were alleged to have been seized from the said house. The detecting officer has prepared the documents without any bonafides and without any scientific proof held that the alleged substance was MDMA. No detection kit was used to identify the suspected substance. It is submitted that detention/arrest of a person cannot be made solely relying on the assumptions of the police officer that too in a case of such serious nature. So far forensic laboratory report has not reached the Court which would attract the rigour of Section 37 of the NDPS Act. Petitioners were arrested on 24.09.2021 and are under detention since then. Further incarceration of the petitioners is not necessary. Even though the petitioners had preferred applications for regular bail before the Sessions Court, Thiruvananthapuram, the said applications were dismissed. Charge sheet is already laid on 12.02.2022. ## **B.A. No.3109 of 2022** 5. The case of the petitioner/3[rd] accused is that he is innocent of the above allegations. The petitioner is not having any knowledge about the alleged offences against him. It is alleged by the prosecution that the contraband was seized from the house rented by the 1[st] accused and the alleged car involved in the above offence is owned by one Ms.Kavitha Rajan. The petitioner is no connection with the above alleged offences. The MDMA and ganja was seized from the possession of 1[st] BA Nos.3109,3778 & 3790 of 2022 6 accused. It is also submitted that the 1[st] accused is having animosity with the petitioner and on the alleged date of incident, the 2[nd] accused who is having acquaintance with the petitioner asked him to settle the dispute between the petitioner and 1[st] accused and requested him to accompany him. Meanwhile the 2[nd] respondent came to the alleged place and arrested the petitioner along with the other accused alleging that 1[st] accused is found in possession of MDMA and ganja. It is submitted that the petitioner had no knowledge about the alleged possession of MDMA by the accused. The 1[st] accused who is in inimical terms with the petitioner, implicated the petitioner in the above crime. It is submitted that there is absolutely nothing to connect the petitioner herein with the recovery made from the other accused. The petitioner is innocent of the offences alleged against him and he has been falsely implicated in this case. 6. The main contention raised by the petitioners is that no contraband was seized from their possession and therefore they are entitled for bail. They further contend that the 4[th] accused was granted bail by this Court and further that Sessions Court, Thiruvananthapuram has granted bail to accused Nos.5 and 6. 7. Learned Public Prosecutor seriously opposed the application for bail mainly contending that on getting reliable information that narcotic drugs are being kept for sale in a house by the name “Thoufiq Manzil” BA Nos.3109,3778 & 3790 of 2022 7 and the said house was searched in the presence of witnesses, 5 persons were found in the hall of the house and they did not give reliable replies and it was found that it was the first accused who was living there on rent and thereafter on further questioning he intimated that MDMA is kept in the drawer of an almirah inside the house and in the presence of the Tahsildar, Chirayinkeezhu Taluk, who is a gazetted officer and other witnesses, 63.60 grams of MDMA was seized from the drawer of the said almirah and subsequently 2.100 kgs of ganja was seized from the car parked in the front side of the said house. It is revealed in the investigation that it is accused Nos.1 to 3 who went to Bangalore to procure the contraband and that they have very active role in the commission of offence. 8. The petitioners have taken a contention that no contraband was recovered from their physical possession in as much as drugs were seized from inside an almirah as well as a car. The learned Public Prosecutor relied on the judgment of this Court in **Sameer v. State of Kerala, 2021 (5) KHC 338** in which also a similar contention was taken that the petitioner therein is not responsible for the contraband articles seized from the apartment as no contraband was seized from his possession. This Court after considering the contentions raised entered a finding that such contentions cannot be accepted while considering the bail applications and that the contraband was seized from the house BA Nos.3109,3778 & 3790 of 2022 8 taken on rent by the petitioner therein and that simply because there is no seizure from the body of the petitioner he cannot escape from the liability at this stage and further that the burden is on the petitioner to establish that he was not in conscious possession of the contraband articles and further that while considering the application for bail such contentions cannot be decided. 9. I am in total agreement with the decision relied on by the learned Public Prosecutor. It is pertinent to note that Annexure-A3 final report produced by the petitioner in B.A.No.3778 of 2022 clearly reveals that accused Nos.2, 3, 5 and 6 are involved in several other criminal cases, the details of which are as follows. _2[nd] accused is involved in - (i) Crime No.569 of 2017 registered under Sections 447, 427, 506 & 34 of the Indian Penal Code (in short, “IPC”) and (ii) Crime No.1294 of 2014 registered under Sections 143, 147, 148, 149, 341, 323, 324 and 427 IPC, of Chirayinkeezhu Police Station; 3[rd] accused is involved in - (i) Crime No.569 of 2017 registered under Sections 447, 427, 506 & 34 IPC and (ii) Crime No.1294 of 2014 registered under Sections 143, 147, 148, 149, 341, 323, 324 and 427 IPC, of Chirayinkeezhu Police Station; 5[th] accused is involved in Crime No.145 of 2019 registered under Section 27 of the NDPS Act of Valiyathura Police_ BA Nos.3109,3778 & 3790 of 2022 9 _Station; and 6[th] accused is involved in – (i) Crime No.619 of 2018 registered under Section 20(b)(ii)A of the NDPS Act & Section 77 of JJ Act of Kadinamkulam Police Station, (ii) Crime No.2694 of 2019, (iii) Crime No.590 of 2019, (iv) Crime No.1978 of 2019, (v) Crime No.45 of 2020 & (vi) Crime No.197 of 2019, all are registered under Section 27(B), and (vii) Crime No.657 of 2018 registered under Section 27(b)(ii), of the NDPS Act of Kazhakkoottam Police Station._ The 4[th] accused was granted bail by this Court in BA No.1159 of 2022 on a total different consideration of the facts and circumstances and accused Nos.5 and 6 were granted bail by the Sessions Court, Thiruvananthapuram as per Annexure-A5 order produced in B.A.No. 3109 of 2022 mainly relying on the order in B.A.No.1159 of 2022 and that the Prosecutor did not oppose the application for bail. In the present case the applications for bail is seriously opposed by the prosecution and contended that there is specific role for the petitioners herein in the commission of the alleged offence. Since the quantity involved is of a commercial one, the rigor of Section 37 of the NDPS Act will come into play. Petitioners could not substantiate by cogent reasons that the twin conditions in Section 37 of the NDPS Act are satisfied so as to grant bail. All the bail applications are accordingly dismissed. BA Nos.3109,3778 & 3790 of 2022 10 Taking into consideration the fact that the final report is already filed after investigation and the fact that petitioners are in custody for a long, there will be a direction to the trial court to expedite the trial. It is 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 trial. Sd/- **VIJU ABRAHAM JUDGE** cks