Subin Varghese v. State of Kerala and Excise Inspector, Changanacherry Excise Range Office

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** **BAIL APPL. NO. 605 OF 2023** CRIME NO.40/2022 OF CHANGANACHERRY EXCISE RANGE OFFICE, KOTTAYAM ## **PETITIONER/2ND ACCUSED:** SUBIN VARGHESE, AGED 24 YEARS S/O BITTI, YUTHAPURAM KARA, VAZHAPPILLY WEST VILLAGE CHANGANACHERY TALUK, KOTTAYAM DISTRICT, PIN - 686103 BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL ARUN POOMULLI PREETHA S CHANDRAN ABHIJITH SREEKUMAR JOSEPH KIRAN D. THEKKEKARA ## **RESPONDENTS/STATE:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 EXCISE INSPECTOR EXCISE RANGE OFFICE, CHANGANACHERY PUZHAVATH, CHANGANACHERY P.O KOTTAYAM , PIN - 686101 BY PUBLIC PROSECUTOR SMT.S. SANGEETHA RAJ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 605 OF 2023 2** ## **ORDER** Dated this the 10[th] day of March, 2023 The 2[nd] accused in Crime No.40/2022 of Changanacherry Excise Range Office, Kottayam, is the petitioner herein and he seeks anticipatory bail in this petition. 2. Heard the learned counsel for the petitioner - as well as the learned Public Prosecutor. 3. I have perused the relevant records. 4. The crux of the prosecution case is that, at about 6.00 p.m. on 25.9.2022, on the basis of a secret information received, the 1[st] accused was found in possession of 1.540 kgs of Ganja, inside the scooter kept in Yamaha showroom, by name, 'Bharat Motors'. On this premise, the prosecution alleges commission of offences punishable under Sections 20(b)(ii)(B), 60(3) and 29 of the **BAIL APPL. NO. 605 OF 2023 3** Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter). The further allegation is that, the 2[nd] accused also involved in possessing contraband and the search was initiated on getting such a secret information. 5. The learned counsel for the petitioner argued that the petitioner herein is arrayed as the 2[nd] accused in this crime, without support of any materials and the one and only piece of evidence collected by the Investigating Officer, to implicate the petitioner, is the confession statement recorded as that of the 1[st] accused, from whom, 30 gm of Ganja was recovered at the time of his body search. It is submitted further that, even on meticulous reading of the recitals in the recovery mahazar, only hearsay information regarding possession and sale of Ganja by the petitioner, could be gathered. It is also submitted that, nothing recovered either from the person or from the conscious possession or otherwise, from the petitioner. Therefore, the petitioner is absolutely innocent **BAIL APPL. NO. 605 OF 2023 4** and his complicity is not all established in this crime. 6. Whereas, the learned Public Prosecutor would submit that, this crime was registered, based on a secret information received and recording the same, in tune with the mandate of Section 42(1) of the NDPS Act. It is submitted that, a person who was not inclined to disclose his name and address, reached and informed that Subin, S/o.Bitty brought 4 kgs of Ganja in Changanacherry, on a nearby day and he used to store Ganja inside the scooter kept in Yamaha showroom, by name, 'Bharat Motors'. It was also informed that, Ajay is the person, who had been helping Subin to deal with Ganja. It is submitted further that, thereafter, when the Investigating Officer reached near the Yamaha showroom, a person with the features of Subin, ran away and another person identified him as Subin. Thereafter, Ajay, who was present at the place of occurrence, in a frightened manner, was searched and 30 gm of Ganja was seized and on further search, 1.51 kg of Ganja seized from the unregistered scooter, meant for **BAIL APPL. NO. 605 OF 2023 5** sale, at the showroom. Summarizing the argument, the learned Public Prosecutor would submit that, starting from recording of information till recovery of contraband, the involvement of the petitioner could be foreseen and in such a case, grant of anticipatory bail would spoil the investigation. 7. On meticulous reading of the materials available, it is true that a person, who even not ready to disclose his name and address, given information as to sale of Ganja, by the petitioner, by keeping the same in a scooter, kept at Yamaha showroom, Bharat Motors, near Changanacherry. It is true that in the mahazar, it is stated that, when the investigation team about to reach Yamaha showroom, a person, with characteristics of Subin, ran away and another person present therein identified him as Subin. Further, Ajay, whose name also recorded in the secret information, was present and was questioned. Thereafter, 30 gm of Ganja was recovered from his pocket and 1.51 kg of Ganja was recovered from the scooter kept **BAIL APPL. NO. 605 OF 2023 6** at the showroom. Eventhough 1.51 kg of Ganja was seized from the scooter, no relevant materials available in the records of the prosecution to show the rational nexus between the contraband and the petitioner. Prosecution case does not suggest the relationship between the petitioner and 'Bharat Motors', where from the contraband was recovered from an unregistered (brand new) scooter. However, the same is not a reason to hold that the prosecution allegation, as such, is false and the allegation as to involvement of the petitioner in this crime may be true. Therefore, effective and impartial investigation must go on and I leave the same to the domain of the Investigating Officer. Since the factual aspects are as espoused, directing the petitioner to subject himself for interrogation, he can be enlarged on anticipatory bail, on the following conditions. i. The petitioner shall surrender before **BAIL APPL. NO. 605 OF 2023 7** the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioner for two days in between 10.00 a.m. to 3.00 p.m. In the event of his arrest, the Investigating Officer shall produce the petitioner before the Special Court on the date of arrest itself. ii. On such production, the Special Court shall release the petitioner on bail, on executing bond for Rs.50,000/(Rupees Fifty Thousand only) by himself and by two solvent sureties, each for the like sum to the satisfaction of the Special Court. iii. The petitioner shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. He shall meet the Investigating Officer on all Wednesdays in between 10.00 a.m. to 3.00 p.m., for a period of two months. **BAIL APPL. NO. 605 OF 2023 8** iv. The petitioner, shall not, intimidate the witnesses or interfere with the investigation in any manner. v. The petitioner shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. ## **Sd/-** **A. BADHARUDEEN JUDGE** Bb