Sakkir Hussain v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945 BAIL APPL. NO. 2748 OF 2022** **CRIME NO.22/2020 OF Parappanangadi Excise Range Office, Malappuram** ## **PETITIONER/ACCUSED NO 3:** SAKKIR HUSSAIN, AGED 35 YEARS S/O. ABDUL HAMEED, PUTHANPURAYIL HOUSE, VADANAPPALLI, CHAVAKKAD THRISSUR, PIN - 680506 BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ## **OTHER PRESENT:** ADV.SEETHA.S, SR.GP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 B.A No. 2748 of 2022 ## **O R D E R** This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail. 2. The petitioner is the 3rd accused in Crime No. 22/2020 of Excise Range Office, Parappanangadi, Malappuram, which was registered for the offences punishable under Section 22(b)(ii)B, 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act. 3. The prosecution case is that, on 22.11.2020 at 5.55 p.m, the 1st and 2nd accused were found in possession of 88.120 grams of MDMA, 1.150 kilograms of Ganja, 0.930 grams of LSD stamp and 325.580 grams of Hashish in a rented house. The accused Nos. 1 and 2 were arrested immediately thereafter. During the course of investigation it was revealed that, the contraband articles were supplied by the petitioner herein. Accordingly, the petitioner was arrested on 14.07.2021. Since then he has been under judicial detention. This application for regular bail is submitted in such circumstances. 3 B.A No. 2748 of 2022 4. Heard, Sri. K.K.Dheerendrakrishnan, the learned counsel for the petitioner and Smt. Seetha.S, the learned Public Prosecutor appearing for the State. 5. The learned counsel for the petitioner vehemently argued that there are absolutely no materials to connect the petitioner with the offences. It is pointed out that, even though the crime was registered on the assumption that the contraband article was MDMA, later it was found that the same is Methamphetamine. The accused Nos. 1 and 2, who are found in possession of the contraband articles are already released on bail. It is pointed out that, the petitioner was implicated as the 3rd accused in this case, merely because of the confession statement given by the other accused persons. It is also pointed out that, even as per the confession statement, the contraband articles were procured from Delhi, whereas the prosecution case is that the petitioner had sent the contraband article by way of parcel through DTDC courier from Goa. Now, the petitioner has been in custody since 14.07.2021, and over two years have elapsed since the date of his arrest. The learned counsel places reliance upon the decision rendered by the Honourable Supreme Court in 4 B.A No. 2748 of 2022 **Mohd.Muslim @ Hussain v. State (NCT of Delhi) I.L.R 2023** **(2) Kerala 457** and a single Bench decision of this Court in **Fasil v. State of Kerala 2023(3) KHC 212** to substantiate his contention. 6. The learned Public Prosecutor opposes the said application. It is contended by the learned Public Prosecutor that, there are specific materials available on record. According to her, the contraband article was sent to the accused No.1, by way of courier through a courier agency named DTDC. The petitioner was identified by the concerned employee of the courier agency. The call data records of the petitioner and the 1st accused would reveal that there were regular contacts between the parties and the number of calls during the relevant period comes around 356. Besides the same, there were regular Monetary transactions between the parties and the total amount which involved in the said transaction was found to be Rs.5,49,000/-. Thus, it is pointed out that the petitioner was implicated as one of the accused on the basis of specific materials and it is not confined to the confession statement of the accused alone. 5 B.A No. 2748 of 2022 7. I have carefully gone through the records. As rightly pointed out by the learned Public Prosecutor, it is evident that even though the petitioner was included in the list of suspects on the basis of the confession statement, during the course of investigation, the investigation team could collect certain materials which would indicate the complicity of the petitioner. The facts such as, the regular monetary transaction between the parties, the call data records etc are some of the crucial aspects. In addition to the same, it is also reported by the learned Public Prosecutor that the petitioner was also involved in another case of similar nature, in which the quantity of contraband articles comes under commercial quantity. During the investigation, when some of the parcels of toys allegedly sent by the petitioner was examined, it found that 30 grams of MDMA was concealed therein. This indicates the _modus operandi_ of the petitioner. 8. One of the crucial contention raised by the learned counsel for the petitioner is that,he has acquaintance with the 1 st accused, as a seller of toys and the petitioner is a person who is a wholesale dealer of toys. According to him, the entire transactions which were referred to by the prosecution are in relation to the 6 B.A No. 2748 of 2022 transaction of the toys. However, the fact that, even in the toys which were allegedly sent by the petitioner to the 1st accused, the contraband article was found concealed, is some thing which supports the prosecution case. 9. When all the aforesaid aspects are taken into consideration, I am of the view that, there are materials indicating a _prima faice_ case against the petitioner. It is true that, the other accused were released on bail, but it is discernible from the records that they were released on the basis of statutory bail. I am of the view that, merely because of the reason that the other accused were released on statutory bail, the petitioner cannot be granted bail. It is particularly because, as per the prosecution case, it was the petitioner who supplied the contraband articles. Besides the same, the petitioner is involved in other cases as well. 10. As regards the decision relied on by the learned counsel for the petitioner, it is to be noted that, in **Mohd. Muslim'** s Case, the Honourable Supreme Court observed about the manner in which the assessment of the satisfaction of the twin conditions contemplated under Section 37 of NDPS is to be applied. However, even going by the observation made therein, the Court 7 B.A No. 2748 of 2022 has to express satisfaction as to the conditions stipulated under Section 37 of the Act before taking a decision as to whether the accused is to be released on bail and the rigour cannot be completely ignored. Therefore, the question of satisfaction of the said conditions is to be decided on a case to case basis. With regard to the decision rendered by this Court in **Fasil** 's case, it was observed by this Court that, in certain circumstances, the rigour of Section 37 of the NDPS Act would get diluted. Of course, I am in full agreement with the aforesaid observation. However, the observations of this Court in **Fasil** 's case cannot be interpreted to mean that in all the cases where the circumstances referred to in the said decision are in existence, automatically, the bail has to be granted to the accused, by completely ignoring the stipulations contained in Section 37 of the NDPS Act. In my view, the said decision is only on the proposition that the rigour of Section 37 would get diluted in certain circumstances, which would mean that the intensity of the rigour becomes lesser. 11. Even when the parameters contained in the observations made by the Honourable Supreme Court in **Mohd. Muslim** 's case and also the observations made by this Court in 8 B.A No. 2748 of 2022 **Fasil** 's case, are applied to the facts and circumstances of this case, I am of the view that, the petitioner does not deserve bail in this case. In addition to the confession statement, there are other materials indicating the complicity of the petitioner. Therefore, merely because of the reason that, the final report has been submitted and the petitioner has been in custody for the past two years, the petitioner cannot be granted bail, as I am not convinced that the twin conditions contemplated under Section 37 of the NDPS Act are satisfied. 12. In this regard, it is also to be noted that, earlier when the matter came up for consideration, a report was called for from the Special Court for SC/ST Prevention of Atrocities Act and NDPS Act cases, Manjeri, where the matter is now pending as S.C No. 1198/2021, as to the status of the case and the time required for completing the trial of the said case. In response to the same, a report dated 09.05.2023 has been placed on record, wherein, it is mentioned that, the trial of the case can be completed within a period of eight months. After considering all the relevant aspects, I am of the view that, this is not a fit case in which the bail can be granted to the 9 B.A No. 2748 of 2022 petitioner. In such circumstances, taking note of the contents of the report of the learned Sessions Judge, even while dismissing this application, it is directed that every endeavor shall be taken by the learned Sessions Judge to complete the trial, within the time mentioned in the aforesaid report. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk 10 ## B.A No. 2748 of 2022 ## **APPENDIX OF BAIL APPL. 2748/2022** |PETITIONER|ANNEXURES| |---|---| |Annexure1|A TRUE COPY OF THE ORDER DATED 25.05.2021| ||IN CRL MP(TEMP) NO. 53/2021 PASSED BY THE| ||SPECIAL COURT FOR SC/ST(POA) ACT & NDPS| ||ACT CASES MANJERI| |Annexure2|A TRUE COPY OF THE ORDER DATED 25.05.2021| ||IN CRL MP (TEMP) NO. 52/2021 PASSED BY| ||THE SPECIAL COURT FOR SC/ST(POA) ACT &| ||NDPS ACT CASES MANJERI| |Annexure3|A TRUE COPY OF THE DISCHARGE SUMMARY FROM| ||DAYA GENERAL HOSPITAL LTD AND SPECIALTY| ||SURGICAL CENTRE, THRISSUR| |Annexure4|A TRUE COPY OF DISCHARGE SUMMARY FROM NEW| ||MEDICAL COLLEGE HOSPITAL, THRISSUR| |Annexure5|CERTIFIED COPY OF THE ORDER DATED| ||04.02.2022 IN CRL MP NO. 47/2022 PASSED| ||BY THE SPECIAL COURT FOR SC/ST(POA) ACT &| ||NDPS ACT CASES MANJERI|