Sipahi Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **Bail Appl..No.774 OF 2020** **CRIME NO.33/2018 OF Thrissur Excise Range Office, Thrissur** ## **PETITIONER/2nd ACCUSED:** **SIPAHI KUMAR, AGED 38 YEARS, S/O. MANGANISAH, MOTIHARI TALUK, CHANDARAHIYA VILLAGE, JEEVADHRA DESOM, EAST CHAMPARAH DISTRICT, BIHAR STATE.** ## **BY ADV. SRI.C.DHEERAJ RAJAN** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-682 031.** ## **SRI SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.774 OF 2020** **2** ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant herein is the 2[nd] accused in Crime No.33 of 2018 registered at the Excise Range Office, Thrissur registered under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On 17.09.2018 at 12.30 pm, the applicant along with the 1[st] accused were allegedly found having in their possession Hashish by the Excise Inspector, Excise Range Thrissur. They were restrained and were informed of their right to be searched in the presence of a Gazetted officer or a Magistrate. As requested by them, the Assistant Excise Commissioner, Thrissur, was summoned to the spot. In the bag found in the possession of the 1[st] accused, 7 packets of hashish weighing 3.441 kg was detected. From the bag found in the possession of the applicant 519 grams of hashish was seized. The contraband were seized and the accused were arrested. Investigation was taken over by the Assistant Excise Commissioner, Thrissur, who completed the same and submitted the complaint before court. The case is now pending as SC No.145 of 2019 on the file of the Additional Sessions Court, Thrissur. **Bail Appl..No.774 OF 2020** **3** 4. Sri.Dheeraj Rajan C., the learned counsel appearing for the applicant, submitted that the applicant has been undergoing incarceration from 17.9.2018 onwards. The earlier application filed by him was dismissed by this Court by Annexure-A5 order. It is further contended that what was allegedly seized from the possession of the applicant is much below the quantity fixed as commercial in nature. He points out that the investigating agency has not included Section 29 of the NDPS Act, 1985 while filing the complaint and hence it cannot now be argued that the applicant had abetted the commission of the offence or that he was a party to the conspiracy along with the 1[st] accused, from whose possession, commercial quantity of narcotics were seized. Reliance is placed on **Muthukumar and Others** v **Station House Officer[1]** and it was argued that if the accused was found in possession of a quantity less than commercial in nature, the rigor under Section 37 will not apply in full force. It is then contended that gross prejudice has been caused in the instant case as the Gazetted officer who was summoned to the spot to witness the search has later investigated the crime and had submitted the complaint before court. Relying on the judgment of the Apex Court in **Mohanlal** v. **State of Punjab[2]** it was argued that the constitutional guarantee > 1 [2008 (2) KHC 592] > 2 [2018(3) KLT 852] **Bail Appl..No.774 OF 2020** **4** under Article 21 of the Constitution of India would be a hollow promise if the gazetted officer himself, who was summoned to witness the search, later assumes the role of an investigating officer, as it would be in his foremost interest to ensure that the accused is convicted. According to the learned counsel, the applicant herein was an employee in a steel factory at Palakkad and he had no occasion to come to Thrissur or carry out the transaction of narcotic drugs. 5. Sri.Suman Chakravarthy, the learned Senior Public Prosecutor has strenuously opposed the prayer. He would point that five times the quantity fixed as commercial was seized from the possession of the accused. They were caught red handed while they were dealing with narcotics. It is contended that unless the applicant satisfies the twin parameters laid down under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is urged that unless there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the applicant cannot be released on bail. He referred to the decisions of the Apex Court in **Union of India (UOI)** v. **Shri Shiv Shanker Kesari[3]** and **Union of India** v. **Ram Samujh and** 3 [(2007) 7 SCC 798] **Bail Appl..No.774 OF 2020** **5** **Another[4]** , **State of Kerala v. Rajesh[5]** to support his contentions. Referring to the decision of the Apex Court in **SUPDT., Narcotics Control Bureau, Chennai** v. **R. Paulsamy[6]** it was contended that the question of non-compliance of mandatory formalities are not to be considered at the stage of deciding the bail application in view of Section 37 of the Act. He would point out that the investigation which was conducted in the instant case has revealed that the applicant and the 1[st] accused were working in the same establishment and being migrant workers were engaged in the trafficking of narcotics. If the materials in the complaint lodged before the court reveals that they were part of a conspiracy hatched among themselves to deal with hashish, a prohibited narcotic substance, the mere fact that Section 29 of the NDPS Act has not been incorporated will not make any difference. Relying on a judgment of the Hon’ble Supreme Court in **Shekher Suman Verma v. Superintendent of NCB and Another[7]** , it was argued that the mere fact that the gazetted officer later took up investigation is no reason to conclude that the investigation is vitiated. Much reliance is also placed on a decision of 4[(1999) 9 SCC 429] 5[Crl.A.No.154-157 of 2020] 6[(2000) 9 SCC 549] 7[2016 (11) SCC 368] **Bail Appl..No.774 OF 2020** **6** the Apex Court in **State of Punjab v. Baldev Singh[8]** and it is argued that the question as to whether there is violation of the mandatory provision will have to be determined by the court on the basis of the evidence led at the trial. Finally it is submitted that this Court by Annexure-A5 order had dismissed the application after considering all facts and circumstances and there is no reason to take a different view. While disposing of the earlier application, this Court had also issued directions to the Special Judge to expedite the trial proceedings and take the matter to its logical conclusion at the earliest. 6. I have considered the submissions advanced and have perused the records. What has been seized from the possession of the 1[st] accused is 3.441 kgs of Hashish. From the possession of the applicant, what is allegedly seized is 519 gms. The records produced before this Court show that the procedural formalities were complied with by the Circle Inspector of Excise. 7. It is by now settled that the jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case, where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is manifest 8[1999 (6) SCC 172] **Bail Appl..No.774 OF 2020** **7** that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is “reasonable grounds”, which expression 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. 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. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. 8. Having carefully considered the materials in the complaint, I find that enough materials have been collected by the prosecution to link the applicant herein with the trafficking of narcotics. The contention that prejudice was caused as the gazetted officer himself **Bail Appl..No.774 OF 2020** **8** had investigated the crime cannot be accepted at this stage. I am also not impressed with the contention advanced by the learned counsel that the rigor under Section 37 will not be attracted in the instant case. Criminal networks traffic a range of drugs including cannabis, cocaine, hashish heroin and methamphetamine. As international borders become increasingly porous, global abuse and accessibility to drugs have become increasingly widespread. This international trade involves growers, producers, couriers, suppliers and dealers. It affects almost all the countries by undermining political and economic stability, ruining the lives of individuals and damaging communities. The endusers and addicts are often the victims of a powerful and manipulative business. Drug trafficking is often associated with other forms of crime, such as money laundering or corruption. Trafficking routes can also be used by criminal networks to transport other illicit products. As held by the Apex Court in **Baldev Singh** (supra), drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including terrorist activities. Drug trafficking, trading and its use have become a global phenomena and has acquired the dimensions of an epidemic. It affects the economic policies of the **Bail Appl..No.774 OF 2020** **9** State, destroys the young and healthy and corrupts the system. 9. In that view of the matter, while considering an application for bail in a case of instant nature, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs has huge implications both at the national level and also at the international level. 10. Having carefully weighed all the contentions advanced before this Court and after perusing the records, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. Furthermore, it would not be possible to conclude that the applicant is not likely to commit any offence while on bail. I hold that the applicant has not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. Another report was called for from the Special Judge who has expressed hope that all **Bail Appl..No.774 OF 2020** **10** endeavour shall be made to dispose of the case at the earliest. The same shall be done. This application will stand dismissed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** DSV/4.3.2020