## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE GOPINATH P.**
**MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943 BAIL APPL. NO. 1339 OF 2022**
## **CRIME NO.2/2022 OF MAMALA EXCISE RANGE OFFICE, ERNAKULAM**
## **PETITIONER/2ND ACCUSED:**
SHAUN OSWIN AGED 21 YEARS SON OF OSWIN EZHUTHAIKAL HOUSE, KUMBLANGI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT ERNAKULAM, PIN - 682007 BY ADVS. K.C.ELDHO S.BIJILAL
## **RESPONDENT/COMPLAINANT:**
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031
## **OTHER PRESENT:**
SRI. C.K. SURESH (SR.PP)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **ORDER**
This is an application for regular bail.
2. The petitioner, in this case, is the 2[nd] accused in Crime No.2/2022 of Mamala Excise Range, Ernakulam.
3. The gist of the prosecution case is that the Excise Circle Inspector, Kunnathunadu and party received information at about 5.20 p.m. on 23.1.2022 from the Circle Inspector attached to the South Zone Excise Commissioner’s Squad, that a person named Jijo Koshi and three others, who were staying together in a house, were engaged in large scale supply and distribution of drugs and other psychotropic substances. It is alleged that the Excise Circle Inspector, Kunnathunadu, along with the Circle Inspector attached to the South Zone Excise Commissioner’s Squad went to the house in question along with two independent witnesses where they found the front door unlocked. After they entered the house, they found a room on the southwestern side with its door closed and when they knocked on the door, the petitioner herein/2[nd] accused opened the door. Two others (accused Nos.3 and 4) were also in the room trying to cover some materials (which were lying on the northeastern side of the said room) with a gunny bag. It is alleged that, though the petitioner and accused Nos.3 and 4 did not insist on the presence of a Magistrate or a Gazetted officer for conducting a body search in terms of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as the 'NDPS Act'), the Excise Officials decided to conduct the search in the presence of a Gazetted Officer. At about 8.15 p.m, in
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the presence of a Gazetted Officer and in the prescience of the independent witnesses, a body search was conducted on the petitioner/2[nd] accused and accused Nos.3 and 4. However, apart from mobile phone/driving licence/ Aadhar Card etc., no incriminating material was recovered. Thereafter, while conducting a search of the room, it was found that the material which was covered using a gunny bag, was Ganja. The total weight of the Ganja recovered was determined to be 15.011 Kg. The Excise Officials also recovered
an electronic weighing machine. The key of a scooter and a mobile phone belonging to the 1[st] accused was also found there. The search of the other rooms in the house did not result in the recovery of any incriminating material. On being questioned, accused Nos.2, 3 and 4 are stated to have revealed that the Ganja was brought by the 1[st] accused Jijo Koshi and that the key recovered was of a scooter belonging to him. On examining the scooter, 1.625Kg of Hashish oil and 2.311 Kg of MDMA were found.
4. The learned counsel appearing for the petitioner would submit that the petitioner is a student of the Final Year of the Mechanical Engineering Course at the Jai Bharathi College, Chelakulam. It is submitted that the petitioner has absolutely no connection with any contraband allegedly recovered from the house in question. It is submitted that the petitioner was only sharing the house with the other accused in the case. It is submitted that the materials in question were brought there by the 1[st] accused and that Hashish oil and MDMA were also recovered only from the scooter of the 1[st] accused. It is submitted that, at any rate, Hashish oil and MDMA
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recovered from the scooter of the 1[st] accused cannot be taken into consideration for the purpose of determining whether the drugs were in commercial quantity and consequently for the purpose of determining whether Section 37 of the NDPS Act applies or not. It is submitted that the petitioner is aged only 21 and his entire career will be destroyed if he is kept under custody. It is submitted that the petitioner has been in custody from 23.1.2022 and his continued detention is not necessary for the purposes of any investigation. Lastly, it is submitted that with reference to the statement recorded from the petitioner/accused No.2 that the said statement, though recorded from the petitioner, proceeds as if it was given by someone else and tries to establish a link between the 1[st] accused and the petitioner by referring to the petitioner by name.
5. Heard the learned Public Prosecutor also.
6. The learned Public Prosecutor vehemently opposes the grant of bail. The circumstances of the case are pointed out from the record. It is submitted that all mandatory procedures under the provisions of the NDPS Act including Sections 42 and 50 have been complied with in this case. It is submitted that the search was conducted after receiving reliable information that the petitioner and the other accused were engaged in large scale supply and distribution of prohibited drugs under the NDPS Act. It is submitted that the petitioner and accused Nos.3 and 4 were clearly part of the gang as they had attempted to conceal the Ganja at the time when the Excise Officials had requested them to open the door of the room. It is submitted that though
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Hashish oil and MDMA were recovered from the scooter of the 1[st] accused, that by itself does not mean that those items should not be considered for the purposes of determining the question as to whether provisions of Section 37 of the NDPS Act apply to the petitioner or not. It is submitted that the fact facts show that the petitioner was very much involved with accused Nos.1, 3 and 4 in the illicit supply and distribution of prohibited drugs. The fact that the statement recorded from the petitioner/2[nd] accused also refers to him by name does not lead to the conclusion that the entire story put up by the prosecution is false, is the submission.
7. I have considered the submissions.
8. The argument of the learned counsel for the petitioner that the quantity of drugs recovered from the scooter of the 1[st] accused should not be factored for determining whether the provisions of Section 37 of the NDPS Act apply or not appears attractive at first blush. However, it must fail on deeper scrutiny. This is a case where the Excise Officials had conducted a search in the house in question on receiving specific information that accused No.1 (Jijo Koshi) along with the other accused including the petitioner were engaged in the illegal supply and distribution of prohibited drugs. The seizure mahazar and other records which are available in the case diary (made available to me for perusal) will show that 15.011Kg of Ganja along with a weighing machine and packing materials were recovered from the room occupied by the petitioner and the other two accused. Though the recovery of Hashish oil and MDMA was from the scooter belonging to the 1[st] accused,
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from an overall appreciation of the facts, in this case, it is clear, _prima facie_ , that the petitioner and accused Nos.3 and 4 were also part of the gang engaging in supply and distribution of prohibited drugs. Therefore, the fact that the recovery of Hashish oil and MDMA was from the scooter of the 1[st] accused is no reason to hold that those recoveries must be seen as relating to the 1[st] accused alone and not to the petitioner. I am fortified in reaching this conclusion in the light of the recent order of the Supreme Court in _**Union of**_
_**India v. Mohd. Nawaz Khan**_ **, (2021) 10 SCC 100 29** where it was
held:-
_“In line with the decision of this Court in Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831] , we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.”_
Secondly, the argument of the learned counsel for the petitioner that the statement recorded from the petitioner/2[nd] accused itself shows that the entire case is false does not appeal to me. The mere fact that the petitioner/2[nd] accused was referred to by name while stating that before bringing the contraband to the house, Jijo Koshi had telephoned the petitioner is no reason to disbelieve the entire prosecution case. Since I have found that the quantities of Hashish oil and MDMA recovered from the
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scooter of the 1[st] accused cannot be discounted for the purposes of determining whether the contraband was in commercial quantities or not it is clear that the provisions of Section 37 of the NDPS Act apply in this case. Therefore, unless twin conditions in Section 37 of the NDPS Act are satisfied, the petitioner is not entitled to bail. It has been held that both conditions must be cumulatively satisfied for an accused to be released on bail. One of the conditions to be satisfied is that the Court must have reasonable grounds to believe that the accused has not committed the offences alleged. The second condition is that the Court must also have reason to believe that the accused is not likely to engage in a similar offence if released on bail. I have no material to hold that both these conditions are satisfied. Therefore, the petitioner is not entitled to bail and the bail application will stand dismissed.
sd/- **GOPINATH P. JUDGE**
acd
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## **APPENDIX OF BAIL APPL. 1339/2022**
PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE ORDER IN CRL MC NO 220 OF 2022 ON THE FILE OF 2ND ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 5-2-2022
