Shanmughadas @ Appu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 BAIL APPL. NO. 3410 OF 2022** **CRIME NO.404/2021 OF Pudukkad Police Station, Thrissur SC 96/2022 OF DISTRICT COURT & SESSIONS COURT,THRISSUR PETITIONER/ACCUSED NO.2:** **SHANMUGHADAS @ APPU AGED 28 YEARS S/O. GANGADHARA KURUP, THEKKEPPURACKAL HOUSE, NJALAYAPARAMBU DESOM, ONGALLUR VILLAGE, PATTAMBI, PALAKKAD DISTRICT - 679303** **BY ADV VISHNUPRASAD NAIR** ## **RESPONDENT/STATE:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031** **(CRIME NO.404/2021 OF PUDUKKAD POLICE STATION, THRISSUR DISTRICT)** **BY PUBLIC PROSECUTOR SRI. K.A.ANAS** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.3410 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A.No.3410 of 2022 .................................................................** Dated this the 22[nd] day of September, 2022 ## **ORDER** This is an application for regular bail. 2. This bail application is filed by the 2[nd] accused in Crime No. 404/2021 of Pudukkad Police Station, Thrissur registered under Sections 20(b)(ii)(C), 25 and 29 of NDPS Act, 1985. 3. The prosecution case is that the Sub Inspector of Police, Pudukkad Police Station, on receipt of secret information that ganja is being transported in large quantity through the public road at Mannuthi, had intercepted a tempo van bearing No. KL58-T-2312 near toll plaza at Puthukkad and on suspicion conducted search in the vehicle. The petitioner was found sitting along with the 1st accused, the driver of the vehicle. Both of them were arrested with the contraband for having transported the same in the vehicle in a separate cabin constructed on the rear side and thereby the case was registered and the contraband was seized. 4. The petitioner submits that he is innocent of the allegations BA No.3410 of 2022 3 leveled against him. He has not committed the above offences as alleged by the prosecution. The true facts of the case is that the petitioner is attached to a workshop and he happened to travel in the vehicle so as to check the mechanical defects if any, as the vehicle was entrusted to his workshop for repair works. During the relevant time the police team intercepted the vehicle and he was arrested. In fact he has not committed any offence and he has no connection with the 1st accused, the driver of the vehicle or the contraband seized. The petitioner was arrested on 1/8/2021 from the spot and is undergoing detention since then. It is further submitted that investigation of the case is over and the final report is filed by the police in the above crime. The final report was taken on file and numbered as SC No. 96/2022 by the District and Sessions Court, Thrissur. The petitioner approached the Sessions Court, Thrissur and filed Crl.M.P. No. 2167/2022. However, the same was dismissed as per order dated 12/10/2021. Subsequently, the petitioner approached this Court by filing B.A. No. 8302/2021. However, the same was also dismissed as per order dated 8/12/2021. The petitioner submits that the quantification and sampling done in this case is in violation of the statute and procedure prescribed under section 52A of the NDPS Act has not been complied in its true letter and spirit. This aspect could not be neither brought to the notice of the court and BA No.3410 of 2022 4 was not considered in Annexures 3 & 4 orders. Specific case of the prosecution is that 154.3 kgs of ganja was kept in 94 separate packets in a separate cabin attached to the vehicle which has been seized. In seizure mahazar, page No. 5, it is stated that immediately after the arrest the recovered packets, 94 in numbers, were cut opened and after mixing the recovered substance together by putting it into a tarpaulin sheet it was separately packed in 11 polythene covers and then representative samples were drawn from the 11 polythene covers. Petitioner contended that the said procedure is against the circular issued in this regard by the Central Government. To substantiate this contention petitioner relies on Annexure A5, A6 and A7 judgments. Petitioner also relies on the judgment in **Gaunter Edwin Kircher v. State of Goa, (1993 (3) SCC 145).** 5. The learned Public Prosecutor opposed the application for bail. As per the prosecution case, the petitioner was found transporting the alleged contraband and was present in the vehicle when the contraband was seized and therefore petitioner was in possession of the alleged contraband. The contraband seized is 154.3 kgs of Ganja and the same was seized by the police from a cabin made below the platform on the back side of the vehicle and also inside the tool box. It is the further contention of the Prosecutor that investigation reveals that purusant to the conspiracy hatched BA No.3410 of 2022 5 between the accused, the 3rd accused has initially hired the tempo van from its RC owner for a month and thereafter made separate cabins. Later the vehicle was purchased by him and they went to Vishakapatnam and procured Ganja and transported the same in the said vehicle, to Kerala. The 3rd and 4th accused has piloted the tempo van in a car and when it reached near Paliyekkara Toll Plaza, the vehicle was intercepted and the contraband was seized. It is the further case of the prosecution that investigation revealed the role of the petitioner in the alleged commission of the offence and the bank transaction details, call details, and ledger details of the lodge in which they have stayed, all revealed the involvement of the petitioner and other accused. Learned Public Prosecutor relies on judgment of the Apex Court in **Sumit Tomar v. State of Punjab, (2013) 1 SCC 395; Supdt., NCB Chennai, v. R. Paulsamy, (2000) 9 SCC 549; Union of India v. Ram Sumujh and another, (1999) 9 SCC 429; NCB v. Kishan Lal, (1991) 1 SCC 705;** and also the judgments of the various high courts in **Bhim Nahak v. State of Orissa, 1991 SCC OnLine Ori 400; Dominic v. State of Kerala, 1989 KHC 143; Joseph v. State of Kerala, 1988 KHC 581; Sameer v. State of Kerala, 2021 (5) KHC 338, Chandran v. State of Kerala, 2008 (2) KLT 513** and **Mary v. State of Kerala, 2005 KHC 1204** to contend for the position that petitioner is not entitled to bail on a contention BA No.3410 of 2022 6 that sampling was not done in accordance with the Standing Orders and on the basis of procedural violation. 6. Though this court has earlier considered the bail application of the petitioner and rejected the same by Annexure A4, the petitioner submits that violation of the procedure in taking samples could not be brought to the notice of this court earlier and therefore the present bail application is filed. 7. Now let me consider the contention of the petitioner in the light of the Standing Order and the judgments/orders relied on by them. The petitioner specifically refer to Clause 2.4 of Circular No.1/1989 under the head General Procedure for Sampling, Storage, etc. Clause 2.4 reads as follows:- _In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container._ 8. The petitioner relies on Annexure A6 judgment in **Amani Fidel Chris’s** case which has also referred to Circular No. 1/89 and held that drawing of sample neither confirmed to the procedure prescribed under Section 52-A of the NDPS Act nor under the Standing Orders. The specific contention in **Amani Fidel Chris’s** case is violation of the procedure prescribed under the Standing Order. Firstly, that is a decision in an appeal against conviction, and going through the judgment, it is seen that acquittal BA No.3410 of 2022 7 was granted taking into consideration other aspects including nonexamination of independent witnesses and further that though the prosecution alleged two different recoveries, the first recovery was disbelieved by the trial court. Further, it is to be seen that relevant provision in the said standing order which is applicable to the facts of the present case is Clause 2.4 which only says that normally, it is advisable to draw one sample from each packet/container in case of seizure of more than one package/container. Even by a mere reading of the said Clause, it does not appear to be made mandatory, is the contention of the learned Public Prosecutor. Another important aspect to be considered is that even though the appeal against the said judgment was dismissed, the Apex Court has consciously left open the question of law and therefore, the judgment in Amani Fidel cannot be treated as final and conclusive. 9. The petitioner further relies on Annexure A5 judgment which also was rendered on the basis of the judgment in **Amani Fidel Chris’s** case. Petitioner also relies on Annexure A7 judgment which is also seen rendered in an appeal in which also the question of procedural violation in the matter of sampling was considered. **Gaunter Edwin Kircher** ’s case heavily relied on by the counsel for the petitioner was also an appeal against conviction. In the said case, two cylindrical pieces of Charas having 7 gms BA No.3410 of 2022 8 and 5 gms respectively were seized and sample was taken only from the cylindrical piece having 5 gms and sent for chemical examination whereas no sample was taken from the cylindrical piece having 7 gms of Charas and the Apex Court held that as no sample was taken from one portion, it cannot be held that petitioner therein was in possession of 12 gms of Charas and can be punished only for having in possession of small quantity. I am of the opinion that the facts of the present case are not similar to that being considered in the said judgment. 10. Now let me consider the judgments relied on by the prosecution in support of their contention. The learned prosecutor relied on the judgment in **Sumit Tomar’** s case supra in which the Apex Court was considering the effect of taking samples after mixing the contraband and held that merely because different punishments have been prescribed depending on the quantity of the contraband, mixing of two bags will not cause any prejudice to the appellant therein and rejected the contention taken by the appellant therein that police should have taken two samples each from the two bags. He further relies on the judgment in **Chandran** ’s case supra, though one under the Abkari Act, which held that when several bottles were seized, it is not necessary that sample need be taken from each bottle. The learned public prosecutor further contended that the contraband being Ganja and the BA No.3410 of 2022 9 same was identified by the investigating officer who is well experienced; the contention of the petitioner that sample should be taken from each packet is not tenable. The learned public prosecutor relies on the judgment in **Bhim Nahak** case supra, **Joseph’s** case supra, **Mary’s** case supra and **Dominic’s** case supra and contended that the test of sight and smell by experienced public officers are acceptable. The learned public prosecutor further relies on the judgment in **Sameer** ’s case supra wherein the contraband was identified by an Excise Official who is an expert and therefore the question as to whether the Excise Official who has identified the article is an expert or a competent authority cannot be looked into while considering a bail application and that can only be considered at the time of trial. Relying on the judgment in **Paulsamy** case supra it was contended that whether there was procedural irregularity etc cannot be looked into at the time of consideration of bail. Learned public prosecutor also relies on the judgment in **Ram Samujh** case supra to contend for the position that the specific reason for incorporating Section 37 of the NDPS Act was to avoid drug offenders being released on bail on technical grounds and therefore an accused in an NDPS case could be released on bail until and unless the mandatory conditions provided in Section 37 are satisfied. Prosecutor also relies on the judgment in **Kishan Lal’s** case supra and contended that bail BA No.3410 of 2022 10 can be granted only subject to the limitation contained in Section 37 of the NDPS Act. 11. It is seen that the judgment of the Apex Court in **Sumit Tomar’s** case supra was rendered subsequent to **Gaunter Edwin Kircher** ’s case supra by a bench of co-equal strength which specifically considered a similar issue and rejected the contentions taken that the investigating agency should have taken two samples each from the two bags without mixing. The Apex Court was considering the effect of taking samples after mixing the contraband and held that merely because different punishments have been prescribed depending on the quantity of the contraband, mixing of two bags will not cause any prejudice to the appellant therein and rejected the contention taken by the appellant therein that police should have taken two samples each from the two bags. The Division Bench of this court in **Chandran** ’s case supra, though in a matter arising out of the provisions in the Abkari Act, considered a similar question after referring to the judgment in **Gaunter Edwin Kircher** ’s case supra held that checking of sample from one bottle will be enough to confirm the value of the articles in all the bottles and if large number of similarly labelled bottles purported to contain same type of article are seized, chemical examination can be done by taking one bottle or certain number of bottles selected at random. Though Amani Fidel BA No.3410 of 2022 11 case supra considered the issue regarding sampling, it was in an appeal filed against conviction. Further, though the SLP filed against the said judgment was dismissed by the Apex Court, the question of law decided in **Amani Fidel** ’s case supra was left open. Further, prima facie I find considerable force in the contention taken by the learned public prosecutor that in the standing order relied on by the petitioner in the matter of sampling when various packets are seized it only says that it is advisable to draw samples from each packet and the same is not mandatory and violation if any cannot be looked into at the time of bail and could be raised only at the time of trial. I am not inclined to accept the contention of the petitioner based on the judgment in **Gaunter Edwin Kircher** ’s case supra, **Amani Fidel** ’s case supra and other orders of the various High Courts relied on by the petitioner especially in view of a judgment of the Supreme Court in **Sumit Tomar** ’s case supra which was rendered subsequent to **Gaunter Edwin Kircher’s** case supra and also the judgment relied on by the public prosecutor in **Chandran** ’s case supra. In **Bhim Nahak** case supra, **Joseph’s** case supra, **Mary’s** case supra and **Dominic’s** case supra the court has held that the test of sight and smell by experienced public officers are acceptable. Further in **Sameer’s** case supra, **Paulsamy** 's case supra, and **Ram Samujh** case supra the court has held that procedural irregularity, BA No.3410 of 2022 12 etc, if any, cannot be looked into at the time of grant of bail. This position has been reiterated by the Apex Court in _**Union of India v Md. Nawas Khan, 2021 (10) SCC 100**_ and held that when the issue is as to whether the procedure laid down under the NDPS Act is complied or not, the same cannot be looked into at the time of grant of bail and can only be decided at the time of trial, as the same is a question of fact. At this point, this court cannot evaluate the evidence on record while exercising discretion under Section 439 Cr.PC. 12. It is also profitable to extract the observation of the Apex Court while considering the impact of Section 37 when deciding a bail application in _**Union of India v. Ram Samujh**_ **, (1999) 9 SCC 429,** which reads as follows: _**7.** It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved._ 13. The offence alleged against the petitioner is very grave and serious in nature. Earlier application filed by the petitioner was rejected by this court. Since the quantity involved is a commercial one, the rigor of Section 37 of the NDPS Act will come into play. Petitioner could not BA No.3410 of 2022 13 substantiate by cogent reasons that the twin conditions in Section 37 of the Act are satisfied so as to grant bail. 14. Taking into consideration the fact that the final report is already filed and the fact that the petitioner is in custody for a long, there will be a direction to the trial court to expedite the trial of the case. 15. 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. **==> picture [406 x 33] intentionally omitted <==** Sd/- **VIJU ABRAHAM** **JUDGE** cks