Siddique 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 NOVEMBER 2023 / 26TH KARTHIKA, 1945 BAIL APPL. NO. 5506 OF 2023 ``` ``` CRIME NO.619/2022 OF KOLATHUR POLICE STATION, MALAPPURAM ``` ## **`PETITIONER/2ND ACCUSED:`** ``` SIDDIQUE, AGED 40 YEARS S/O MUHAMMED KUTTY, KAMBURAM HOUSE,KUTTIPURAM P.O, KOTTAKKAL,MALAPPURAM - 679 571 ``` ``` BY ADVS. V.VINAY NISSAM NAZZAR ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031,(CRIME NO:619/2022 OF KOLATHUR POLICE STATION, MALAPPURAM DISTRICT) ``` ``` BY SR.PUBLIC PROSECUTOR SRI. K DENNY DEVASSY ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5506 OF 2023 2 ``` ## **ORDER** Dated this the 17[th] day of November, 2023 This is the second application for regular bail, filed by the petitioner, who is the 2[nd] accused in Crime No.619/2022 of Kolathur Police Station, Malappuram District. 3. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 2. Earlier, the bail application filed by the petitioner was dismissed, as per order in B.A.No.628/2023, dated 21.3.2023. The relevant paragraphs of the same are extracted hereunder: _“3. The prosecution case is that at about 06.15 p.m on 21.09.2022, the 1[st] accused in this crime was nabbed by the police when he was found in illegal possession of 140 grams of MDMA in the PadapparambuPerinthalmanna Public Road near AL HILAL Academy, for the purpose of sale. Later enquiry revealed that the petitioner herein also involved in this crime and accordingly he was incorporated as the 2[nd] accused in this_ ``` BAIL APPL. NO. 5506 OF 2023 3 ``` _crime. Thus the prosecution alleges commission of offences punishable under Sections 22(c) & 29 of the Narcotic Drugs and Psychotropics Substances Act (`NDPS’ for short hereinafter) jointly by accused 1 and 2._ _4. The learned counsel for the petitioner argued at length to convince this Court that the 2[nd] accused is innocent in this crime and nothing recovered from the conscious possession of the 2[nd] accused to implicate him in this crime. It is argued that only because of an employer-employee relationship with the 1[st] accused and the petitioner, he was nabbed and subjected to gruesome ordeals and incarceration. It is also submitted that the petitioner’s mobile phone bearing Registration No.9605050851 was lost and other mobile phone used by the petitioner bearing Reg.No.8838285501 has been seized by the police. It is pointed out further that the materials available to connect the petitioner in this crime are only the confession statement of the co-accused and the call details between them and the above materials are quite insufficient to fasten criminal culpability as held by the Apex Court in the decision reported in [Manu/SC/1240/2021],_ _**Bharatchaudhary & Ors. v. Union of India**_ ``` BAIL APPL. NO. 5506 OF 2023 4 ``` _**(UOI) & Ors.** The learned counsel has given emphasis to para.11 to convince the same. Para.11 is extracted hereunder:_ _“11. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15[th] July, 2021. This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (supra). The impugned order qua A-4 is, accordingly, quashed and set aside and the order dated 2[nd] November, 2020 passed by the learned Special Judge, EC & NDPS Cases, is restored. As for Raja Chandrasekharan [A-1], since the charge sheet has already been filed and by now the said Accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial Court.”_ _5. Similarly, the learned counsel for the petitioner placed another decision of the_ ``` BAIL APPL. NO. 5506 OF 2023 5 ``` _Apex Court reported in [2010 KHC 4495 : AIR 2010 SC 3638 : 2010 (12) SCC 91],_ _**Bipin Kumar Mondal v. State of West Bengal** , to contend that mere absconsion of the accused by itself does not necessarily lead to a firm conclusion of the guilt of the accused._ _6. Another decision reported in [2022 (1) KHC 853 : 2022 (1) KLT 552 : 2022 KHC OnLine 6172 : 2022 (2) SCALE 14 : MANU/SC/0053/2022],_ _**State by (NCB) Bengaluru & Ors. v. Pallulabid Ahmad Arimutta & Ors.** also has been placed to contend that confession statement recorded under Section 67 of the NDPS Act will remain inadmissible in trial of offences under the NDPS Act. [MANU/SC/0854/2022],_ _**State of West Bengal v. Rakesh Singh** also submitted in this regard._ _7. Whereas it is submitted by the learned Public Prosecutor that the complicity of the petitioner in this crime is well established. According to the learned Public Prosecutor, the prosecution collected evidence in this case with regard to the joint residence of the 1[st] and 2[nd] accused and when the 1[st] accused was questioned, he had given statement that the contraband was given by one Muthu, later identified as the 2[nd] accused._ ``` BAIL APPL. NO. 5506 OF 2023 6 ``` _That apart, the prosecution when recorded the confession statement of the 2[nd] accused, he had conceded that at the time, when recovery was effected, the mobile phone of the 1[st] accused was kept at the car of the 2[nd] accused and when the 2[nd] accused ran away, the mobile phone of the 1[st] accused was lost during running and immediately the 2[nd] accused destructed his mobile phone. The learned Public Prosecutor also pointed out the call details in between the 1[st] and 2[nd] accused, immediately before occurrence and during the time of occurrence, to prove the complicity of the petitioner at par with the 1[st] accused._ _8. It is true that the confession statement recorded under Section 67 of the NDPS Act is inadmissible in evidence as rightly held by the Apex Court in [2020 (6) KHC 111],_ _**Tofan Singh v. State of Tamil Nadu** . However, in a subsequent decision reported in [2022 SCC OnLine SC 891],_ _**Narcotics Control Bureau v. Mohit Aggarwal** , a 3 Bench of the Apex Court, while affirming the said view, in para.17 of the judgment observed as under:_ _“17. Even dehors the confessional statement of the respondent and the other co-accused_ ``` BAIL APPL. NO. 5506 OF 2023 7 ``` _recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have disssuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.”_ _9. In the case at hand, even though the petitioner raised absolute plea of innocence, the same could not be gathered from the available materials. The case records would go to show that initially the 1[st] accused disclosed the name of Muthu and later it was revealed that the 1[st] accused_ ``` BAIL APPL. NO. 5506 OF 2023 8 ``` _purposefully said a different name as that of the 2[nd] accused. That apart, as on 19.09.2022 and 20.09.2022, the accused herein jointly stayed at the C.M.Palace Lodge, Virajpet._ _10. It is relevant to note that even though the learned counsel for the petitioner submitted that final report was filed before the trial court, confession statements as that of the 1[st] and 2[nd] accused, were not produced, the same are available in the case diary and the same would suggest that the 2[nd] accused herein destroyed his mobile phone soon after the arrest of the 1[st] accused and also he would say that the mobile phone of the 1[st] accused was at his car at the time of occurrence. If so, the connection of the 1[st] accused and 2[nd] accused in the transport of MDMA, as alleged by the prosecution, is prima facie established. It is interesting to note further that the 2[nd] accused given statement to the Investigating Officer that he ran away with both mobile phones (including that of the 1[st] accused) and the mobile phone of the 1[st] accused missed during his run. Call details between the 1[st] and 2[nd] accused and their joint stay at the same room on the previous day of occurrence are very vital piece of materials to show the involvement of_ ``` BAIL APPL. NO. 5506 OF 2023 9 ``` _the petitioner in this crime prima facie. Thus on preliminary analysis of the facts of the case, there is no reason to hold at present that the petitioner is innocent and he has no role in this occurrence. To the contrary, it appears that the petitioner has role in this crime along with the 1[st] accused and, therefore, the contention raised by the learned counsel for the petitioner cannot be appraised. But the same can be taken during trial by support of convincing evidence._ _11. Here, admittedly commercial quantity of contraband was seized and therefore, the rigour 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_ ``` BAIL APPL. NO. 5506 OF 2023 10 ``` _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) 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._ _12. On a perusal of Section 37(1)(a)(i), when the 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._ _13. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798,_ _**Union of India**_ ## **`BAIL APPL. NO. 5506 OF 2023 11`** _**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._ _14. 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 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._ _15. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in_ _**Superintendent, Narcotics**_ ## **`BAIL APPL. NO. 5506 OF 2023 12`** _**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],_ _**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 [2023 CriLJ 799],_ _**Union of India v. Jitentra Giri** ._ _16. 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_ ``` BAIL APPL. NO. 5506 OF 2023 13 ``` _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._ _17. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, application for regular bail at the instance of the petitioner must fail._ _Hence the petition stands dismissed.”_ 4. As per order, dated 31.10.2023, a report was called for from the learned Special Judge, as regards to further investigation in this matter and the learned Special Judge submitted a report, dated 3.11.2023. As per the report, the ``` BAIL APPL. NO. 5506 OF 2023 14 ``` learned Special Judge submitted that no further investigation is conducted so far in this matter and the learned Special Judge is ready to dispose of the case, within a period of 6 months. At this juncture, the learned counsel for the petitioner filed a memo to withdraw this bail application. Accordingly, this bail application is dismissed as withdrawn, with a direction to the learned Special Judge, to expedite the trial, within a period of 6 months, without fail. Registry is directed to forward a copy of this order to the Special Court, for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** Bb