Shuaib A.S. v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ``` BAIL APPL. NO. 9386 OF 2022 ``` ``` AGAINST THE ORDER CRMP 1782/2022 OF ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM ``` ``` (CRIME NO. 1 OF YEAR 2022) ``` ## `PETITIONER/2ND ACCUSED:` ``` SHUAIB.A.S AGED 29 YEARS S/O ABDUL VAHEED, RESIDING AT BISMI MANZIL, KABARADI, KOITHOORKONAM P.O, KEEZHTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM TALUK OF THIRUVANANTHAPURAM DISTRICT, PIN - 695584 ``` ``` BY ADVS. J.R.PREM NAVAZ SUMEEN S. MUHAMMED SWADIQ S.DILEEP SATHYAN O.MOHAMED BASIL KOYA THANGAL ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 BY ADVS. SPECIAL PUBLIC PROSECUTOR RAJAGOPALAN NAIR K.R. ``` ## B.A.No.9386 of 2022 ..2.. ## `OTHER PRESENT:` ``` P G MANU SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.9386 of 2022 ..3.. ## A.BADHARUDEEN, J. -------------------------------------------------------- ## B.A.No. 9386 of 2022 -------------------------------------------------------- Dated this the 17[th] day of March, 2023 ## O R D E R This is an application for regular bail filed by the accused No.2, in Crime No.1/2022 of Narcotic Control Bureau, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner as well as the learned Special Public Prosecutor appearing for the Narcotic Control Bureau. 3. I have perused the complaint and other materials form part of the complaint in this crime. 4.The prosecution case in brief is that, 80 grams of MDMA was seized from the possession of the 1[st] accused, at about 12.30 pm on 09.11.2021. Thereafter, the 1[st] accused was arrested and has been detained in custody. Further investigation revealed the involvement of accused Nos. 2 to 7 in this crime. The specific allegation of the prosecution against the 2[nd] accused is that, the 2[nd] accused had arranged a lodge to the 1[st] accused to collect the contraband which was seized from his possession and also he had paid rent for the said room. That apart, the petitioner also effected payment of money to the B.A.No.9386 of 2022 **==> picture [24 x 11] intentionally omitted <==** other accused, in the matter of purchase of the contraband. The petitioner was arrested on 29.01.2022 on the basis of the said allegations. In this matter, prosecution alleges commission of offences punishable under Sections 8(c) r/w 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985. 5. The learned counsel for the petitioner submitted that, the prosecution materials are quite insufficient to connect the petitioner in this crime. Merely, relying on the confession statement of the other accused, he was booked and detained in custody. It is also argued that, in the confession statement, given by the 1[st] accused, as on 22.11.2021 or thereafter, on 13.01.2022, nothing stated as to involvement of the 2[nd] accused, though he had referred the names of certain other accused in this crime. Giving reliance, to the confession statement of the 1[st] accused, the learned counsel for the petitioner placed plea of absolute innocence in so far as the petitioner is concerned, while pressing for grant of regular bail, on the submission that, in the facts of the given case, the rigor under Section 37 as no applicable. 6. The learned Special Public Prosecutor representing NCB, read out the relevant portions of the complaint filed by the Narcotic Control Bureau, Sub Zone, Cochin, before the Special Court B.A.No.9386 of 2022 **==> picture [24 x 11] intentionally omitted <==** (Additional Sessions Court-I, Thiruvananthapuram) in relation to OR No.01/2022/NCB/SZ/COK, to show the complicity of the petitioner. The relevant paragraphs read out by the learned Special Public Prosecutor as regards the complicity of the petitioner is available in page No.XV and page No. 22 and para 72. 7. Accordingly, the learned Special Public Prosecutor submitted that the petitioner’s complicity is well made out in this crime, prima facie. Therefore, he is not liable to be released on regular bail, in a case, involving commercial quantity of contraband without diluting the rider under Section 37 of the NDPS Act. 8. On perusal of the relevant portions of the complaint, the same is as under: ## Page No.XV “Shameer S/o Moosa, BismiManzil, Khabaradi, Peringathur P.O, Kannur, Kerala, Ph. No. 8606449806 has been working as manager at Aafa Studio Room, Munnedola, Kundanahalli gate, Banglore Since 2018 January to till date. On being asked, he stated in his statement that on 05/11/2021 a person namely Sajith S, S/o Sunil Kumar, Kavuvilakathu Veedu, Kaipally Nagar, Chittatu Mukku, Trivandrum came along with a person name Shuaib A.S to Aafa Studio Room, Munnekola, Kundanahalli gate, Banglore and they (Sajith S (A-1) and B.A.No.9386 of 2022 **==> picture [24 x 12] intentionally omitted <==** Shuaib A.S (A-2) accessed Shameer, Manager Aafa Studio Room, around 1630 hrs on 05/11/2021 and enquired with him that rate of room rent and document needed to book a room in that property for that he replied that room rent would be @Rs.500/- per day and any id proof as usually they do at this property. Then Sajith S, submitted his election ID card copy NXI1142439 on which Shameer duly certified and appended his signature further as advance Rs.1000/- liquid cash Shuaib A.S paid at property on behalf of Sajith S and booked room no.108 at this property, the guest in and out register page in which Sajith S, name is mentioned duly certified and signed by Shameer. (I) On being asked by showing the following person photos Sajith, S (A-1), Shuaib A.S (A-2), and Rahul M.G (A-5). Shameer, Manager, Aafa Studio identified them as he knows them as a guest who used to visit this property earlier also recently 04 times those people visited. (II) On being asked, Shameer, Manager, Aafa Studio told that on 08/11/2021 around 1910 hours Sajith S was leaving the room he had no money to pay the balance Rs.1000/- meanwhile Shuaib A.S, shown manager a bus ticket booked in the name of Sajith S and requested him that urgently Sajith S has to go at Majestic to catch the bus Shuaib A.S assured the manager that he would pay the balance room rent Rs.1000/- and later on 08/11/2021 at 10;51 PM Shuaib A.S paid off the balance room rent Rs.1000/- through google pay and checked out the room no 108. The google pay transaction page is duly certified by the manager.” B.A.No.9386 of 2022 ..7.. ## Page No. 22 and para 72. “72. During the course of the investigation done according to law, on scrutiny of documents and material objects seized, and on the basis of voluntary statements recorded during the investigation, it has come to light that Sajith S (Accused-1), Shuaib A.S (Accused-2), Tumba Tukandi Levy (Accused-3), Arnold Nkuna alias Curtis (Accused-4), Rahul M.G (Accused-5), Amal M Nair (Accused-6) and Vishnu Vikraman (Accused-7) had planned the conspiracy of illicit trafficking of 80 grams of Metamfetamine which was seized on 09/11/2021 at Attupuram Excise Check Post from the possession of Sajith S (A-1). Rahul M.G.(A-5), and Vishnu Vikraman (A-7) are friends from the same locality in Thiruvananthapuram. In the year 2018 Rahul M G was arrested by Kerala State Excise In NDPS Case registered in Amaravila Excise 17/2018 and In the year of 2019 Rahul M.G. (A-5) was lodged in Central Jail, Banglore in connection with a drugs trafficking case registered by Anti Narcotic Wing, Banglore. Dated 26.04.2018. He got friendship with International drugs trafficker Arnold Nkuna alias Curtis (A-4) while they both were in Central Jail, Bangalore. Later they both got bail from the respective Hon'ble Court. Since 2020 they both have been actively doing drugs business. Rahul M.G. is operating his drugs trafficking network from Goa, an intermediate quantity drug case is already under trial against him before this Hon'ble Court. Arnold Nkuna Curtis (A-4) has already been in judicial custody in connection with a commercial quantity drugs case registered by B.A.No.9386 of 2022 **==> picture [24 x 12] intentionally omitted <==** DJ Halli Police Station Cr.No. 0087/22. In the end of October 2021 Rahul M.G. (A-5), received 80 grams Metamphetamine (N,alpha, dimethylphenethylamine) order from one of his associates and his friends Vishnu Vikraman (Accused-7). Then Rahul M. G (A-5) arranged one Sajith S. (A-1) for collecting the drug from Bangalore and further deliver it to Vishnu Vikraman (Accused-7). Rahul M.G. (A-5) on 26/10/2021 booked a Train Ticket having PNR No.4632890875, Second Sitting, S-24-M in Train No. 06316 Kochiveli to Banglore in the name of Sajith S. (A-1) using mob no.8137933177 as customer mobile number, and from Rahul M.G (A-5)'s IRCTC account which is linked with the email id rahultribesmeng2019@mail.com & Ph.No.8136851757 issued in the name of Rahul M.G (A-5). Further, the source of the ticket is also verified in which it has come to light that the ticket amount Rs.270/- as IRCTC ticket fare and Rs.12.29 user handling charge have been debited from Rahul M.G's Federal bank Ac.No.22050200000890. On 27/10/2021 Sajith S (A-1) left Trivandrum and reached Banglore on 28/10/2021. Sajith S (A-1) stayed at Aafa Studio Room, Munnekola, Kundanahalli, Banglore around from 05/11/2021 to 08/11/2021. The room no.108 was booked in the name of Sajith. S (A-1) using copy of his election ID card bearing no. NXI1142439. The rent @Rs.500/- per day was paid by Shuaib A. S.(A2). Rs. 1000/- was paid cash as advance on 05/11/2021 by Shuaib A. S (A-2). On 07/11/2021 Rahul M.G.(A-5) called through WhatsApp from his Indian phone number/WhatsApp No. 8050035096 to Arnold Nkuna Curtis (A-4)'s Congo whatsapp No. +243 897632125 and asked Arnold Nkuna alias Curtis (A-4) to arrange 80 grams of MDMA/Metamfetamine. Arnold Nkuna alias B.A.No.9386 of 2022 **==> picture [24 x 12] intentionally omitted <==** Curtis (A-4) said he could arrange and Rahul M.G (A-5) asked Arnold Nkuna alias Curtis (A-4) when and where Arnold Nkuna alias Curtis (A-4) hand over it to one of Rahul M.G (A-5)'s friends namely Shuaib A.S (A-2) whom Nkuna alias Curtis (A-4) known for around two months and earlier also in many occasions Arnold Nkuna alias Curtis (A-4) had handed over drugs on the direction of Rahul M.G. Arnold Nkuna alias Curtis (A-4) replied that once he got the 80 grams of MDMA/Methamphetamine, he would tell the delivery location. On 08/11/2021 Arnold Nkuna alias Curtis (A4) called Rahul M.G (A-5) over WhatsApp and asked him to send his friend Suhaib A.S (A-2) near KFC, HRBR Layout, Kammanhalli around 1345 hrs then Arnold Nkuna alias Curtis (A4) and Tumba Tukandi Levy (A-3) reached near KFC, HRBR Layout, Kammanhalli then on the direction of Rahul M.G (A-5), Shuaib A.S (A-2) reached around 1350 hrs near KFC, HRBR Layout, Kammanhalli. On the same day around 1400 hrs, Rahul M.G (A-5) transferred Rs.50,000/- from his Federal Bank Ac.No. 55550102018213 to Shuaib A.S (A-2) Federal Bank Ac.No 55550101116398. Further Shuaib A.S (A-2) withdrew @10,000/x 04 times = Rs.40,000/- from a ATM nearby KFC, HRBR Layout, Kammanhalli and handed over liquid cash Rs.40,000/- to Arnold Nkuna alias Curtis (A-4) and collected 80 grams of Metamfetamine as directed by Rahul M.G (A-5). As soon as Shuaib A.S (A-2) collected the drugs, he left for Munnekola, Kundanahalli to his room and he handed over the drugs to Sajith S (A-1) around 1800 hrs and Sajith S (A-1) left the room at 1905 hrs later the room rent balance Rs.1000/- is also paid by Shuaib A.S (A-2) through google pay to the Aafa Studio Room Manager Shameer. B.A.No.9386 of 2022 **==> picture [32 x 12] intentionally omitted <==** On scrutinizing the bank Ac.No.5555012018213 of Rahul M.G. (A-5) and Shuaib A.S (A-2) Federal Bank Ac. No. 55550101116398, it was found matched with Arnold Nkna alias Curtis (A-4) statement which clearly establish the financial involvement of Rahul M.G (A-5), Shuaib A.S (A-2) and Arnold Nkna alias Curtis (A-4) in the NCB, Cochin OR-1/2022. On analysing various bank accounts of Rahul M.G (A-6), it has come to light that he has made huge financial transactions in each bank account between 2018 and 2021, as followed (a) 22050200000890 Rs.56,37,900/-, (b) Ac.No.99980103567736 Rs.9,48,662/- and (c) Ac.No.55550102018213 Rs.8,87,596/-. Rahul M.G (A-6) has totally made Rs.74,74,158/- transactions by using the above three accounts, which is a huge sum whereas he has no job. In the voluntary statement of Shuaib A.S (A-2), he has stated that he has no job and he was in search of a job in Bangalore. On scrutinizing his Federal Bank Ac. No. 55550101116398 it has come to light that he has made transactions Rs.2,12,547/- within a short span of 06 months. The above account clearly reveal that they have used these bank accounts for drugs trafficking.” 9. Even on a cursory reading of the averments in the complaint, as extracted herein above, even though, the involvement of the petitioner could not be gathered from the confession statements given by the 1[st] accused, the other materials, with reference to the averments herein above referred, would show his involvement in this crime. Therefore, prima facie, the prosecution case is supported by B.A.No.9386 of 2022 **==> picture [31 x 11] intentionally omitted <==** sufficient materials. Therefore, the absolute innocence, as pointed out by the learned counsel for the petitioner, could not be appreciated at this stage and same can be adjudicated by the Special Judge during trial, based on evidence to be adduced. 10. No doubt, when the prosecution alleges possession of commercial quantity of contraband, the rider under Section 37 of the NDPS Act would apply. Section 37 of the NDPS Act provides as under: 37. Offences to be cognizable and non-bailable.-- - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- - (a) every offence punishable under this Act shall be cognizable; - (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) B.A.No.9386 of 2022 **==> picture [32 x 11] intentionally omitted <==** of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 11. On a perusal of Section 37(1)(a)(i), when the Special Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail. 12. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, Union of India v. Shiv Shankar Kesari and held that the expression ‘reasonable grounds’ means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 13. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially B.A.No.9386 of 2022 **==> picture [32 x 12] intentionally omitted <==** confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 14. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in Superintendent, Narcotics Central Bureau v. R.Paulsamy [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], Customs, New Delhi v. Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], Union of India v. Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], Union of India v. Rattan Malik [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], Union of India v. Niyazuddin [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], B.A.No.9386 of 2022 **==> picture [32 x 11] intentionally omitted <==** State of Kerala v. Rajesh [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. The latest decision on this point is one reported in [2023 Crl.L.J.799], Union of India v. Jitendra Giri . 15. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients. 16. Thus, while granting bail to an accused, who alleged to have committed offences under the NDPS Act involving, commercial quantity, where learned Special Public Prosecutor opposes grant of bail, this Court must satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence and he will not likely to commit any offence while on bail. B.A.No.9386 of 2022 ..15.. 17. Going by the prosecution allegations, this Court could not satisfy the above conditions in any manner. Therefore, the petitioner is not liable to be released on bail. Accordingly, this bail application stands dismissed. Sd/- A.BADHARUDEEN, JUDGE mtk