SHAJAHAN T.A. v. STATE OF KERALA

## **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. 3476 OF 2022** **CRIME NO.228 OF 2022 OF THADIYITTAPARAMBU POLICESTATION,** ## **ERNAKULAM** ## **PETITIONER/3RD ACCUSED:** **SHAJAHAN T.A. AGED 27 SON OF ALIAR, PUTHIYAVEETTIL HOUSE, PUTHUSSERIMALA, VADAVODE P O, KANGARAPPADI, ERNAKULAM DISTRICT, PIN 682310** **BY ADVS. K.NIRMALAN T.R.KRISHNADAS** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 INSPECTOR OF POLICE THADIYITTAPARAMBU POLICE STATION, ERNAKULAM RURAL DISTRICT,, PIN - 683105 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT P.O., ERNAKULAM- 682031** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **27.07.2022, ALONG WITH Bail Appl..3980/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3476, 39802022 & connected cases 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. 3980 OF 2022** **CRIME NO.228 OF 2022 OF THADIYITTAPARAMBU POLICESTATION,** ## **ERNAKULAM** ## **PETITIONER/ACCUSED 2:** **VAISHAK AGED 24 YEARS S/O SIVAM MURIYANJODE HOUSE, KAILAS COLONY, THEVAKAL KARA, ALUVA EAST VILLAGE, ERNAKULAM, PIN - 682021** **BY ADVS. ANISH ANTONY ANATHAZHATH VIJEESH K.S.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM - 682031** ## **OTHER PRESENT:** **SR.PP - SMT. SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3476/2022, 4088/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3476, 39802022 & connected cases 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. 4088 OF 2022** **CRIME NO.228 OF 2022 OF THADIYITTAPARAMBU POLICESTATION,** **ERNAKULAM** ## **PETITIONER/6TH ACCUSED:** **JILU E S @ VAVA AGED 38 YEARS SON OF SASI, PALLIPARAMBIL HOUSE, TOG ROAD, SOUTH KALAMASSERY, NJALAKAM KARA, THRIKKAKARA, ERNAKULAM - 682021** **BY ADVS. C.Y.VINOD KUMAR C.ANILKUMAR (KALLESSERIL) P.M.MANASH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** **BY SR PUBLIC PROSECUTOR SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3980/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3476, 39802022 & connected cases 4 **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. 4091 OF 2022** **CRIME NO.228 OF 2022 OF THADIYITTAPARAMBU POLICESTATION,** **ERNAKULAM** **PETITIONER/8TH ACCUSED:** **KABEER AGED 38 YEARS SON OF ABBAS, KODIYAMATTAM HOUSE, NAD P.O., NOCHIMA, ALUVA, ERNAKULAM - 683563** **BY ADVS. C.Y.VINOD KUMAR C.ANILKUMAR (KALLESSERIL) P.M.MANASH** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **BY PUBLIC PROSECUTOR SRI.M.C.ASHI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3980/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3476, 39802022 & connected cases 5 ## **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. 4207 OF 2022** **CRIME NO.228 OF 2022 OF THADIYITTAPARAMBU POLICESTATION,** ## **ERNAKULAM** ## **PETITIONER/5TH ACCUSED:** **VARGHESE V.X AGED 32 YEARS, S/O.V.J. XAVIER VELUTHAMANNUNGAL HOUSE T.O.G. ROAD, RAJAGIRI P.O SOUTH KALAMASSERY,, PIN - 683104 BY ADVS. O.U.ANISH RAJ DR.ABHILASH O.U.** ## **RESPONDENT/STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 2 SUB INSPECTOR OF POLICE THADIYITTAPARAMBU POLICE STATION. ERNAKULAM - 683105 BY PUBLIC PROSECUTOR SRI.M.C.ASHI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3980/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3476, 39802022 & connected cases 6 ## **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. 4476 OF 2022** **CRMC 1186/2022 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO.228 OF 2022 OF THADIYITTAPARAMBU POLICESTATION,** ## **ERNAKULAM** ## **PETITIONER/ACCUSED NO.9:** **NAJEEB,S/O ALI, AGED 35 YEARS MURIKKASSERY HOUSE, EDATHALA KARA, ALUVA EAST VILLAGE, ERNAKULAM - 683563** **BY ADVS. ANITHA MATHAI MUTHIRENTHY MIDHUN S. KARUN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA – 682031** **BY PUBLIC PROSECUTOR SMT.SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH Bail Appl..3980/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA Nos.3476, 39802022 & connected cases 7 ## **VIJU ABRAHAM, J.** **................................................................. B.A.Nos.3476, 3980, 4088,4091, 4207 & 4476 of 2022 .................................................................** Dated this the 27[th] day of July, 2022 ## **ORDER** These are applications for regular bail. 2. BA Nos.3980 of 2022, 3476 of 2022, 4207 of 2022, 4088 of 2022, 4091 of 2022 and 4476 of 2022 are filed by accused Nos. 2, 3, 5, 6, 8 and 9 respectively in Crime No. 228 of 2022 of Thadiyittaparambu Police Station, Ernakulam registered alleging commission of offences punishable under Sections 20(b)(ii)(B) & (C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). 3. The prosecution's allegation is that on 25.03.2022 at about 8.25 p.m., the 1st accused was found in possession of 1.845 kgs of ganja at his residence in Kizhakkambalam Village. He was arrested on the spot by the Inspector of Police, Thadiyittaparambu and his team and the contraband items were taken into custody. Upon further investigation it has been revealed that 70.400 kgs of ganja was transported by the accused 2 to 7 in the car bearing registration No.KL-13 K 760, and that the ganja was recovered from the house of the 1st accused was in fact purchased by him from the 7th accused who had procured the import of huge quantity of ganja from the State of Orissa. Thus, the accused are alleged to have committed BA Nos.3476, 39802022 & connected cases 8 the abovesaid offences. 4. The learned counsel for the petitioners sought for grant of bail mainly contending that they have been in custody for a long and that the final report is already filed and therefore their further custodial interrogation is not required. They also rely on the order of this Court in B.A.No. 3069 of 2022 whereby the 4th accused was granted bail. It is also the contention that the 7th accused is also granted bail by the Sessions Court, Ernakulam. Yet another contention taken by few of the accused is that they have been arrayed as accused only on the basis of the confession statement of the co-accused which was held by the Apex court in **Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1** , that it cannot be taken into account to convict an accused except to the extent found “relevant” under Section 53-A of the NDPS Act and when corroborated in accordance with the law. The petitioners also rely on the judgment of the Apex Court in **State by (NCB), Bengaluru and others v. Pullulabid Ahmad Arimutta and others, 2022 (1) KHC 853** and also **Muhammed Shareef v. Narcotics Control Bureau,** ## **2022 SCC OnLine Ker 2036.** 5. Learned Public Prosecutor seriously opposed the application for bail mainly contending that on 25.03.2022 when the police party searched the house of the 1st accused, 1.845 kgs of ganja, which was kept for sale, was seized along with a digital weighing machine. In connection with the abovesaid crime accused Nos.1 to 7 were taken into custody and BA Nos.3476, 39802022 & connected cases 9 from the confession statement of the 7th accused, 70.400 kgs of ganja was recovered from the car bearing registration No. KL 13 K 760 owned by the 8th accused. A conspiracy was hatched by accused for procuring ganja from Orissa for sale in Kerala. Thereupon, 160 Kgs of ganja from Orissa was purchased by accused Nos. 8 and 9 with the help of the 7th accused and transported in the tanker lorry of the 12th accused and out of the same 80 kgs was unloaded at Pollachi and balance 80 kgs was kept at Kalamassery in the car owned by the 8th accused and out of the same 9 kgs was sold by accused Nos. 4, 5, 6 and 7 and accused Nos. 1, 2 and 3 handed over the profit share of Rs. 24,000/- to accused Nos. 4 and 5 and out of the said amount Rs.21,200/- was seized from the 5th accused and out of the 2 kgs of ganja purchased by the 1st accused from the 7th accused, 1.845 kgs was seized from the 1st accused. Further accused Nos.8 and 9 were arrested and accused Nos.10 and 11 who came to purchase the ganja were arrested along with the money and also the 12th accused who brought ganja in the tanker lorry was also arrested. As per the prosecution case, based on an agreement between the accused, it is accused Nos.7, 8 and 9 who funded to purchase ganja from Orissa and the said ganja brought is to be sold by accused Nos.1, 2, 3, 4, 5, 6, 10 and 11 and the profit will be given to accused Nos.7, 8 and 9. It is further submitted that the seizure was made perfectly in accordance with the provisions of the NDPS Act. Along with 1.845 kgs ganja seized from the house of the 1st accused, various electronic weighing machines were also seized. On the basis of the BA Nos.3476, 39802022 & connected cases 10 confession statement of the 7th accused, the police party went to seize balance ganja which is kept in the vehicle and it is the prosecution case that one person was found opening dicky of the car and two persons were standing there and one among them was found in possession of cash to be given to person who is opening the dicky, all the three persons were intercepted by the police party and at this point of time another person came out of the driving seat of the vehicle and he was also stopped and the person who was in the driving seat was found to be one Kabeer (A8), the person who tried to open the dicky was found to be one Najeeb (A9), the person who was having possession of money was found to be Manu Babu (A10) and the person who was along with him was found to be one Maneesh (A11) and on being questioned they were found to be perplexed and were not giving correct replies. Later on, the vehicle was examined and ganja was seized. Maneesh and Manu Babu were taken into custody and later on in the presence of a gazetted officer the body of Kabeer was searched and two mobile phones were seized. Thereafter, body of Najeeb was searched and 2 mobile phones were seized from him and Aadhar card and a few debit cards were seized from his purse. Later the ganja was weighed in the presence of witnesses. 6. Learned Public Prosecutor upon instructions further submitted that most of the accused are involved in other criminal cases which includes NDPS cases also. Learned Public Prosecutor further submits that BA Nos.3476, 39802022 & connected cases 11 the investigation is going on and that the involvement of the petitioners herein is clearly revealed in the investigation and further investigation is to be done to probe into the other details involved in the case. Learned Public Prosecutor further submits that bail was granted by this Court to the 4th accused without taking note of the fact that the quantity involved is a commercial one and that in the present case, the rigor of Section 37 of the NDPS Act will definitely come into play. The decision relied on by the petitioners are not applicable in the facts and circumstances of this case. The investigation is still progressing. Almost all the petitioners have serious criminal antecedents. Admittedly quantity involved is a commercial one and therefore 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 at this stage. All the bail applications are accordingly dismissed. 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