Pushpa Chikkatti v. State of Kerala

**BAIL APPL. NO. 4519 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** **BAIL APPL. NO. 4519 OF 2021** **SC 368/2019 OF DISTRICT AND SESSIONS COURT - II, KALPETTA,** ## **WAYANAD** **CRIME NO.193/2019 OF THIRUNELLI POLICE STATION** ## **APPLICANT/ACCUSED NO.4:** PUSHPA CHIKKATTI, AGED 33 YEARS, OCC-LABOURER, W/O.APPA RAO, 3/20 PEDAPPAD, ODALA HAMPETTA, MANDAL, VISHAKAPATTANAM, THELUNGANA. BY ADVS. BIJU ANTONY ALOOR K.P.PRASANTH SHAFIN AHAMMED ARCHANA SURESH ARUNRAJ S. ## **RESPONDENT/COMPLAINANT:** 1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 THE INSPECTOR OF POLICE, THIRUNELLY POLICE STATION, THIRUNELLY P.O., WAYANAD DISTRICT, PIN - 670 646. SRI C K SURESH, SR GOVERNMENT PLEADER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 4519 OF 2021 2** ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the 4th accused in S.C.No.368/2019 on the files of the Special Judge, NDPS Act Cases/Additional Sessions Judge-II, Kalpetta. The aforesaid case has arisen from Crime No.193 of 2019 of the Thirunelli Police Station registered on 21.6.2019 at 6 pm. under Sections 20(b)(ii) (C) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. After investigation, final report has been laid under Section 20(b)(ii)(C) and Section 29 of the NDPS Act, 1985. 3. From the records made available, the prosecution allegation is that on 21.06.2019 at about 1.20 p.m., the Station House Officer of the Thirunelli Police Station received secret information that a group of persons were on their way to Mananthavady from Mysore carrying contraband and that they were travelling in a KSRTC bus. The Sub Inspector of Police and his party laid wait at Bavali. At about 2.20 p.m., the KSRTC bus bearing Reg. No. KL-15A-629 reached the spot and the bus was intercepted. It is alleged that two persons were sitting on the backside with two bags on their lap. On questioning them, the officer realized that they spoke only Telugu. With the **BAIL APPL. NO. 4519 OF 2021** **3** assistance of a police officer, who was conversant with the language, the said persons were questioned. The bags found on their laps were searched and it was found that the same contained Ganja. Behind them, one person was found sitting alone. A bag was found in his possession and on search, two packets of Ganja were found inside. On the opposite side, the applicant herein and a lady by the name Satya were found travelling. They were also holding bags. The applicant was found keeping a bag on her lap. The Bag was opened and it is alleged that 3 packets containing about 6 kgs were found in her possession. It is alleged that 3 packets of Ganja weighing 2 Kgs, 1.80 Kgs and 1.80 Kgs were seized from the possession of the 1st accused, 1 packet containing 2.1 Kgs was seized from the possession of the 2nd accused, 2 packets containing 2.1 kg and 2 kg was seized from the possession of the 3rd accused, 3 packets containing 2 kgs each was found in the possession of the applicant and 3 packets containing 2 Kgs each were seized from the possession of the 5th accused. The contraband was seized and the accused were arrested. It is alleged that the total quantity of contraband seized from the possession of the accused was 25.550 kgs. She was produced before the learned Magistrate and was remanded on the same day and has been in custody since then. 4. The applicant had approached this Court seeking regular **BAIL APPL. NO. 4519 OF 2021** **4** bail and by order dated 7.11.2019, the same was dismissed. After submission of the final report, the applicant is before this Court yet again seeking regular bail. 5. Sri B.A. Aloor, the learned counsel appearing for the applicant submitted that the applicant is innocent of all allegations. According to the learned counsel, the applicant does not deny that she was not travelling on the bus and was on her way to Manathavady. However, the allegation of seizure of contraband from her possession is clearly false. According to the learned counsel, purely on the basis of suspicion, the applicant, who is a coolie worker, was implicated in the instant case. It is contended that nowhere in the earliest records, it is mentioned that the applicant was informed of her rights. The applicant was in an advanced stage of pregnancy when she was arrested on 21.6.2019. While in custody she delivered a child, who is now aged about 1.5 years. The applicant is finding it difficult to bring up the child with all the care and support from her family members. As the pandemic is surging in the area and as several cases are being reported inside the jail, the life of the applicant, as well as the child, is in danger. There are no near relatives with whom the breastfeeding child can be entrusted. It is further submitted that even if the prosecution allegations are admitted in its entirety, the quantity of ganja allegedly seized from her possession is 6 kgs which is much **BAIL APPL. NO. 4519 OF 2021 5** below the commercial quantity. Relying on a judgment of Division Bench of this Court in **Muthu Kumar and Ors. V State of Kerala** [2008 (2) KHC 592], it was argued that section 37 of the Act which places an interdiction on granting bail when commercial quantity is seized would not apply in the instant case as the quantity seized from her possession individually taken is much below the limit fixed for the commercial quantity of ganja. It is further submitted that there are serious discrepancies in the prosecution case which commences from the stage of detection, production of the contraband before the court and there is also a clear non-compliance of the mandatory formalities. It is contended that there is no reason why the presence of a Gazetted Officer or Magistrate was sought particularly when, the detecting officer had previous knowledge that the accused were travelling in the bus, contends the learned counsel. It is further submitted that the applicant has been in prison for over two years and the likelihood of the trial taking place in the near future is very remote. The entire adolescent age of the infant child will have to be spent in prison, submits the learned counsel, which would amount to serious infringement of the rights of the child, contends the learned counsel. 6. Sri. C.K. Suresh, the learned senior Public Prosecutor, has opposed the prayer. It is submitted that a huge quantity of ganja was **BAIL APPL. NO. 4519 OF 2021** **6** seized from the possession of the accused, who were found travelling together. According to the learned Public Prosecutor, the discrepancies pointed out by the learned counsel will not in any way affect the case of the prosecution at this stage. It is further contended that the mere fact that the applicant has been in prison for about two years is no reason to grant bail particularly when the allegations are of trafficking of narcotics. According to the learned Public Prosecutor, the applicant has not been able to show that there are reasonable grounds for believing that she is not guilty of the offence or that she is not likely to commit any offence while on bail. Much reliance is placed on the decision of the Apex Court in **Union of India (UOI) v. Shri Shiv Shanker Kesari [** (2007) 7 SCC 798] to support his contentions. It is also submitted that the question of whether or not the safeguards provided in Section 50 of the Act were observed would have to be determined by the trial court on the basis of the evidence let in at the trial and the finding on that issue, one way or the other, would be relevant only for recording of an order of conviction or acquittal. The learned Public Prosecutor has also relied on the decision of the Apex Court in **SUPDT., Narcotics Control Bureau, Chennai v. R. Paulsamy** [(2000) 9 SCC 549] to substantiate his submission. 7. I have considered the submissions advanced and have perused the entire case diary. The detection was on 21.6.2019 and it **BAIL APPL. NO. 4519 OF 2021** **7** is alleged that the detecting officer had received advance information and they were laying in wait. When the bus arrived at the spot, the same was intercepted and the police went inside. The accused were found sitting together on the backside of the bus and it is alleged that they were all keeping a bag on their lap. As per Section 50 of the NDPS Act, when any officer duly authorised under Section 42 is about to search any person under the provisions of Sections 41, 42 or 43, he is required to, if such person so requires, to take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. If such a request is made, the officer is entitled to detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1) of section 50. The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search, is entitled to forthwith discharge the person. Sub Section (4) of Section 50 of the Act mandates that no female shall be searched by anyone except a female. In the case on hand, nowhere in the Mahazar has it been stated that the accused were informed of their rights before search or the presence of a Gazetted Officer or a Magistrate was secured. Furthermore, though a woman police officer accompanied the detecting party, the search was in fact carried out by the detecting officer. There is no whisper as to whether a body search was conducted after finding that the accused **BAIL APPL. NO. 4519 OF 2021** **8** were latching on to the bags in their possession. Though the detection was on 21.6.2019, the records reveal that the contraband seized was produced before the learned magistrate only at 12.30 p.m on 27.6.2019. Out of eight items, only item No. 1 (2 packets marked as S1 & S2 ), item No. 2 (marked as Exhibit P18 ) and item No.3 (marked as Exhibit P19 ) were found to be sealed. Item Nos. 4, 5, 6 and 7 were bags that were not labelled or sealed. Even the specimen seal of the Investigating officer was not provided. Section 52 (2) of the Act clearly mandates that the item seized shall be forwarded to the Court without unnecessary delay. Though this observation is a prima facie observation based on the records produced, at this stage, it would lend some credence to the contention of the applicant that the stringent provision of the Act to prevent false implication of innocent persons have been violated. 8. In the case on hand, the applicant was allegedly found in possession of 6 Kgs of Ganja. True, the total quantity of contraband seized from the possession of the accused is about 25 kgs of Ganja. The question as to whether Section 37 of the NDPS Act would be attracted in such cases was the issue before a Division Bench of this Court in **Muthukumar** (supra). It was held as follows in para 4 of the judgement. **BAIL APPL. NO. 4519 OF 2021** **9** “As far as this application is concerned, we are of the opinion that the question is mere academic. The applicants herein were charge sheeted for offences punishable under S.20(b)(ii)(C). The allegations in the charge sheet prima facie show that out of the total quantity of 31.150 k.grams of ganja, the 1st accused was found carrying 15 k.g and 50 grams folded in his waste, the 2nd accused was found in carrying 6 k.gms. in a bag and 5 k.gm in a suit case and 50 grams in his waste and 3rd accused was carrying 5 k.g. in a bag and 50 grams in his waste. If that be so, even though total quantity as above is a commercial quantity, each of the accused was in possession of only a lesser than the commercial quantity. If the accused were not in possession of the commercial quantity, S.20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act will not apply. It is reported that the accused were in prison from 26/10/2007 and they had undergone 167 days imprisonment and the charge sheet was already filed. Considering the facts and circumstances of the case, we are of the opinion that this is a fit case for granting bail on stringent conditions.” 9. The principles laid down in the above decision would apply on all fours in the case of the applicant as well. Furthermore, the fact that the applicant had delivered a child while undergoing judicial custody and that she has an infant child with her in prison cannot be ignored. The applicant has been in prison for over 2 years. 10. With a view to ascertain as to whether the trial can be expedited, this Court had called for a report from the Additional Sessions Judge. The report reads thus: **BAIL APPL. NO. 4519 OF 2021** **10** ‘As the post is vacant, there is no regular sitting in the court of Additional District and Sessions Judge-II, Kalpetta, where the sessions case cited under reference No.2 above is now pending. Said court is a designated Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985. From 30-06-2021 on wards, I am holding additional charge of that court. Presently, only urgent matters of that court are being attended by me. The Additional District and Sessions Court-I which I am regularly presiding over is a special court designated under the Protection of Children from Sexual Offences Act 2012. There are as many as 9 cases in which the accused persons are under trial prisoners, in POCSO Act cases. Now, preference is being given to such cases. Because of the pandemic situation prevailing in Wayanad district, the courts have been experiencing difficulties in securing the presence of witnesses. Even full fledged regular sittings are not possible and most of the cases are being heard on line. In the sessions case cited under reference No.2 above, the prosecution has cited 31 witnesses, in the memo of evidence. Though charge has been already framed against all the accused in the case, the recording of evidence could not be started because of the pandemic situation. The witnesses can be summoned in the case once the situation improves.’ 11. Thus, the likelihood of the trial taking place in the near future is remote particularly, due to the absence of a judicial officer and also owing to the restricted functioning of the courts due to the pandemic. 12. For the aforementioned reasons, I am of the view that by imposing stringent conditions, the applicant can now be released on bail. Before concluding, it is made clear that these prima facie **BAIL APPL. NO. 4519 OF 2021 11** observations are made for the limited purpose of deciding this bail application and any opinion expressed above shall not be regarded as an opinion on merits during trial. In the result, this application will stand allowed. The applicant shall be released on bail on her executing a bond for Rs.50,000/(Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions: - 1) She shall not intimidate or attempt to influence the witnesses; nor shall she tamper with the evidence. 2) She shall produce attested copies of her Aadhar card/bank details or any other valid identification proof which shall contain details of her permanent place of abode in the State of Telangana. 3) She shall not leave the State of Kerala without the permission of the Court having jurisdiction until the trial is over. 4) She shall not commit any offence while she is on bail. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps