SRAVAN v. STATE OF KERALA

## **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. 897 OF 2022** ## **CRIME NO.731 OF 2021 OF HARIPPAD POLICE STATION, ALAPPUZHA** ## **PETITIONER/3RD ACCUSED:** SRAVAN, AGED 23 YEARS, THATTASSERIL HOUSE, EVOOR NORTH MURI, CHEPPADU VILLAGE, ALAPPUZHA, PIN – 690 507. BY ADVS. S.K.SAJI P.VIJAYA BHANU (SR.) ## **RESPONDENT:** STATE OF KERALA, STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, HARIPPAD POLICE STATION,ALAPPUZHA DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, PIN – 682 031. BY SRI. C.K. SURESH (SR.PP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2022, ALONG WITH Bail Appl..1355/2022, 1441/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.897/2022 & conn.cases 2 ## **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. 1355 OF 2022** **CRIME NO.731 OF 2021 OF HARIPPAD POLICE STATION, ALAPPUZHA PETITIONER/6TH ACCUSED:** AKSHAY KUTTAN AGED 24 YEARS O.U. NIVAS, VETTATHUKADAVIL, KIZHAKKEKKARA MURI, ARATTUPUZHA VILLAGE, ALAPPUZHA, ALAPPUZHA, PIN – 690 515. BY ADVS. M.R.ARUNKUMAR P.T.BINDURAJ P.SHAMMI NAVAS ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. BY SRI. C.K. SURESH (SR.PP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2022, ALONG WITH Bail Appl..897/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.897/2022 & conn.cases 3 ## **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. 1441 OF 2022** **CRIME NO.731 OF 2021 OF HARIPPAD POLICE STATION, ALAPPUZHA PETITIONER/7TH ACCUSED:** SACHIN, AGED 23 YEARS, SON OF TENSING, UCHARICHIRAYIL HOUSE,KALLIKKATTU MURI, ARATTUPUZHA P.O, ALAPPUZHA NOW RESIDING AT LAKSHMIVILASAM HOUSE, NALLANIKKAL MURI, ARATTUPUZHA P.O, ALAPPUZHA, PIN – 688 001. BY ADV OMAR SALIM ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. 2 THE STATION HOUSE OFFICER HARIPAD POLICE STATION, ALAPPUZHA DISTRICT, KERALA, PIN – 690 514. BY SRI. C.K. SURESH (SR.PP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2022, ALONG WITH Bail Appl..897/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.897/2022 & conn.cases 4 ## **ORDER** These are the applications for regular bail. 2. These bail applications are filed by accused Nos.3, 6 and 7 in Crime No.731 of 2021 of Harippad Police Station, Alappuzha District, alleging the commission of offences under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act). Bail Application No.897 of 2022 has been filed by the 3[rd] accused, Bail Application No.1355 of 2022 has been filed by the 6[th] accused and Bail Application No.1441 of 2022 has been filed by the 7[th] accused. 3. The gist of the prosecution case is that on 07.11.2021 at about 10.05 PM, the Sub Inspector of Police Station, Harippad Police Station received information over the station phone that some youngsters have stored contraband articles prohibited under the NDPS Act for sale inside Room No.61 at a resort known as Mangalya Resort. It is alleged that after complying with the provisions of Section 42 and after sending a search memorandum to the Jurisdictional Magistrate, the Sub Inspector of Police and party, proceeded to the Mangalya Resort and after requiring the presence of the Tahsildar and Executive Magistrate, Karthikappilly, conducted a search in Room No.61 of the aforesaid Mangalya Resort and seized 52.410 grams of MDMA from a bag belonging to accused No.2 and arrested accused Nos.1 to 7, who were present in the room at the time. It B.A.No.897/2022 & conn.cases 5 is alleged that by having in possession for sale and for use the aforementioned quantity of MDMA, the accused, including the petitioners herein have committed the offences under the aforesaid provisions of law. 4. I have heard Sri.P.Vijayabhanu, the learned Senior Counsel appearing on the instructions of Sri.S.K.Saji, the learned counsel appearing for the petitioner in Bail Application No.897 of 2022, Sri.M.R.Arunkumar, the learned counsel for the petitioner in Bail Application No.1355 of 2022, Sri.Omar Salim, the learned counsel appearing for the petitioner in Bail Application No.1441 of 2022 and Sri. C.K Suresh, Learned Senior Public Prosecutor, for the State. 5. The learned Senior Counsel appearing for the petitioner in Bail Application No.897 of 2022 vehemently contends that there is absolutely no material whatsoever to connect the petitioner / accused No.3 with the offences alleged. It is submitted that admittedly, the recovery of the contraband was from a bag belonging to accused No.2. It is submitted that the presence of the petitioner in the room does not mean that the petitioner has also committed an offence under the provisions of the NDPS Act. It is submitted that two recent decisions of the Supreme Court namely that in _**Bharat Choudhary v. Union of India** ;_ 2022(3)Supreme 171 and _**State By (NCB) Bengaluru**_ **v.** _**Pallulabid Ahmad Arimutta and Another**_ **;** 2022(2)Supreme 409 are relevant in the facts and circumstances of the case. It is submitted that in _**Bharat Choudhary**_ ( _supra)_ , it was held that if there is no recovery of B.A.No.897/2022 & conn.cases 6 contraband from a particular accused, notwithstanding the provisions Section 37 of the NDPS Act, the particular accused cannot be denied bail. It is submitted that the said decision is also authority for the proposition that WhatsApp chats etc. between the petitioner and the other accused cannot be the basis to hold that there was a live link between the petitioner and the other accused in the case. It is pointed out that in _**Pallulabid Ahmad Arimutta** (supra)_ , it has been held that a confession statement recorded under Section 67 of the NDPS Act is inadmissible in evidence in the light of the judgment of the Supreme Court in _**Tofan Singh v. State of Tamilnadu**_ ; (2021) 4 SCC 1. It is submitted that any statement recorded under Section 67 of the NDPS Act cannot form the basis for any prosecution and for denying bail to an accused. The order of a learned Single Judge of this Court in B.A. No.3554 of 2021 is referred, to point out that as long as there was no recovery of contraband from the conscious possession of the petitioner, the petitioner cannot be denied bail. Sri.M.R.Arunkumar, the learned counsel appearing for the petitioner in Bail Application No.1355 of 2022 would submit that the allegation that the petitioner in Bail Application No.1355 of 2022 (6[th] accused) had transferred money to the account of the 1[st] accused for the purchase of drugs is absolutely fallacious. It is submitted that the petitioner had no occasion to transfer any amount to the 1[st] accused in the case. It is submitted that the WhatsApp chat between the petitioner and the 1[st] accused cannot be the basis to hold that the petitioner is also guilty of the offence under the NDPS Act. The learned B.A.No.897/2022 & conn.cases 7 counsel has referred to the WhatsApp chat relied on by the prosecution to contend that they do not convey the meaning ascribed by the prosecution. It is submitted that the petitioner is an NCC cadet 'A' certificate holder and a law-abiding citizen with no criminal antecedents. The order of the Bombay High Court in _**Rhea Chakraborty v. Union of India (Through Intelligence Officer, Narcotics Control Bureau, Mumbai and Another;**_ **2020 SCC Online BOM 990** is referred, to contend that financing of drug purchase has a specific meaning and should not be lightly assumed. It is submitted that a reformative approach should also not be lost sight of even at the stage of considering bail applications to which the provisions of Section 37 of the NDPS Act apply. It is submitted that confessional statements cannot be relied upon to establish guilt against the petitioner. The judgment of the Supreme Court in **Union of India v. Rattan Mallik;** (2009) 2 SCC 624 is referred, to contend that the term 'reasonable grounds' in Section 37 of the NDPS Act means substantial probable causes for believing that the accused is not guilty of the offences alleged. Sri.Omar Salim the learned counsel appearing for the petitioner in Bail Application No.1441 of 2022 would reiterate the contentions taken by the learned Senior Counsel for the petitioner in Bail Application No.897 of 2022 and the counsel for the petitioner in Bail Application No.1355 of 2022. 6. The learned Public Prosecutor vehemently opposes the grant of bail. It is submitted that the investigation conducted thus far has B.A.No.897/2022 & conn.cases 8 clearly established the role of the petitioners in these cases. It is submitted that the investigation reveals that accused Nos.1 and 2 together with accused Nos.3 to 7 conspired together and collected money for purchasing MDMA from Bangalore. It is submitted that accused Nos.1 and 2 went to Bangalore on 03.11.2021 and purchased 174 grams of MDMA from one Mufas Muhammed. It is submitted that a total amount of Rs.1,84,440/- was transferred to three accounts as per the direction of the aforesaid Mufas Muhammed. It is alleged that the aforesaid Mufas Muhammed delivered the drugs by dropping the same in a ‘pothole’ at Whitefield in Bangalore. The picture of the specific pothole and Google Map location was sent by Mufas Muhammed to the mobile phone of accused No.1 via WhatsApp on 05.11.2021. It is alleged that on the same day, accused Nos.1 and 2 went along with accused No.8 and collected the contraband. It is alleged that on 07.11.2021, accused Nos.1 and 2 returned to Harippad by the _Bangalore – Kochuveli_ train. It is submitted that the 3[rd] accused along with 4[th] accused picked up accused Nos.1 and 2 from the Harippad Railway station in a Maruti Baleno Car bearing registration No.KL 29 P 3929 belonging to the father of accused No.3. It is also alleged that A1 and A2 were dropped at Harippad Railway Station to catch the train to Bangalore in the same car. It is submitted that from the railway station, accused Nos.1 to 4 went to the Mangalya Resort. It is alleged that accused No.1 thereafter sold 50 grams of MDMA to one Jeffin and thereafter, accused Nos.1 to 4 proceeded to Pullukulangara in the car belonging to the father of accused No.3 and sold 45 grams of MDMA to B.A.No.897/2022 & conn.cases 9 one Bharath Jayan, who as arrested on 29.01.2022 and is accused No.9 in the case. It is submitted that, after that, they proceeded to a place called ' _Kochiyude Jetti Bridge_ ' and sold 20 grams of MDMA to one Syam, who has not yet been arrested. It is submitted that thereafter A1 to A4 proceeded to Kallikkad and A7 joined them, from where they proceeded to Alappuzha and later came back to Room.61 of Mangalya Resort. It is submitted that the prosecution has collected sufficient evidence including digital evidence regarding the above. It is alleged that when they reached back to the Mangalya resort, A5 and A7 were waiting there and all of them (accused Nos.1 to 7) partied there and consumed some quantity of contraband. It is submitted that A5 brought small pouches with zip lock and while the accused were preparing to pack the balance quantity into smaller packets, the Sub Inspector of Police reached the spot and effected recovery. It is submitted that the bank account details of the 3[rd] accused indicate that there were huge transactions in the said account. It is submitted that apart from the drugs, a weighing machine and packing material was also seized from the room occupied by the petitioners which clearly indicates that they were engaged in the illegal sale of Narcotic Drugs. It is submitted that accused No.6 (petitioner in Bail Application No.1355 of 2022) had transferred an amount of Rs.28,000/- from his UPI account to another account maintained in his own name in the Federal Bank, Kayamkulam Branch (Account No.99980103797770) and thereafter transferred an amount of Rs.26,000/- to the account of Annexure A1. It is submitted that this amount was transferred for the B.A.No.897/2022 & conn.cases 10 purpose of purchase of drugs from Bangalore. It is submitted that accused No.7 also had transferred money to the account of accused No.2 for the purchase of drugs from Bangalore. It is submitted that accused No.7 has also played an active role in the entire transaction. It is submitted that he was also involved in preparing for sale the balance quantity of drug available with the accused after packing the same into smaller packets. Certain WhatsApp chats between accused 2 and 3 are also referred to, by the learned Public Prosecutor, to show that the 3[rd] accused was clearly involved in the illegal purchase and sale of contraband. The judgment of the Supreme Court in _**Union of India through Narcotic Control Bureau, Lucknow v. Mohammed Navaz Khan**_ **;** 2021 KHC 6503 (2021 SCC Online Sc 782) is relied on to contend that when the prosecution has collected evidence to connect all the accused with the accused from whose bag the recovery was effected, the fact that no contraband was recovered from the immediate possession of the particular accused has to be ignored. The judgment of this Court in _**Jose and another v. State of Kerala;**_ 2021 KHC 727 is relied on to contend that the question as to whether conscious possession has been established is a matter for trial. The judgment of this court in _**Sameer v. State of Kerala;**_ **2021 (5) KHC 338** is relied on to contend that where the contraband is seized from a room which is occupied by all the petitioners herein, that by itself is sufficient to establish that the petitioners are guilty of the offences alleged against them. Certain other judgments are pointed out to contend that smuggling and dealing in B.A.No.897/2022 & conn.cases 11 Narcotic Drugs and Psychotropic Substances has assumed serious and alarming proportions and the strict provisions of the NDPS Act have been enforced to deal with this menace. Several other decisions are referred to show what the term 'conscious possession' means. Certain decisions including the recent decisions of the Supreme Court in _**State of Kerala v. Rajesh;**_ **2020(1) KHC 557** are referred to show that unless the twin conditions in Section 37 are satisfied, the petitioners are not entitled to be released on bail. 7. Having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that the petitioners are not entitled to be released on bail. The prosecution has collected sufficient materials to _prima facie_ establish that the petitioners herein namely accused Nos.3, 6 and 7 had entered into a conspiracy with the other accused in the case to purchase contraband substances (MDMA) from Bangalore. There is also sufficient material collected to suggest that accused Nos.3 and 7 had also engaged in the sale of MDMA brought to Kerala from Bangalore. The vehicle belonging to the father of the 3[rd] accused was used to travel to various places to sell MDMA. According to the prosecution, there is the recovery of a weighing machine and packing material from the room in which accused No.1 to 7 were occupying at the time when the search and seizure were effected. All these cumulatively establish at the very least a _prima facie_ case against the petitioners. The decisions in _**Bharat Choudhary**_ and _**Pallulabid Ahmad Arimutta**_ B.A.No.897/2022 & conn.cases 12 ( _supra)_ do not support the contentions of the petitioners in these cases. Bharat Chowdhary _(supra)_ turned on the fact that the link between accused No.4 in that case and accused Nos.1 to 3 could not be established merely on the basis of statements recorded under Section 67 of the NDPS Act and certain WhatsApp chats. This is not the case here. As submitted by the learned Public Prosecutor, there are enough support materials to _prima facie_ conclude that the petitioners are also part of the conspiracy to purchase drugs from Bangalore and distribute the same in Kerala. The order of this court in Bail Application No.3554 of 2021 also turned on its own facts and the said decision has no application to the facts of these cases. As far as the issue of possession is concerned, in _**Mohammed Navaz Khan** (supra)_ it was held:- _29. 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._ Since the contraband recovered is in commercial quantity, the petitioners in these cases are not entitled to bail unless they satisfied the twin conditions in Section 37 of the NDPS Act. I have no reasonable grounds to believe that the petitioners are not guilty of the offences alleged against them. B.A.No.897/2022 & conn.cases 13 These bail applications will stand dismissed. I am sure that the prosecution will conduct a fair investigation and if it appears that the petitioners herein or any among them were not involved in the matter, the prosecution will take necessary steps in accordance with the law. Any observation in this order touching upon the merits of the case is only for the purpose of considering the entitlement or otherwise of the petitioners for Bail and shall not be treated as a finding by this Court on any issue. Sd/- **GOPINATH P. JUDGE** DK