Suneesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940** ## **Bail Appl..No. 4710 of 2018** **CRIME NO. 11/2018 OF THODUPUZHA EXCISE RANGE OFFICE, IDUKKI DISTRICT** ## **PETITIONER/ACCUSED:** **SUNEESH, AGED 34 YEARS, S/O. SASIDHARAN NAIR, THOTTAKATTU HOUSE, MADATHIKANDAM - PETTENADU KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENT/STATE:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, COURT OF SESSIONS, ERNAKULAM (CR NO. 11/2018 OF EXCISE RANGE OFFICE, THODUPUZHA, IDUKKI DISTRICT)** **BY SR. PUBLIC PROSECUTOR SRI.ANAS K A** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDER** This application is filed under Section 439 of the Code of Criminal Procedure. 2. The applicant herein is the accused in Crime No.11 of 2018 registered at the Excise Range Office, Thodupuzha. In the aforesaid BA:4710/18 2 crime, he is accused of having committed offence punishable under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). 3. The prosecution allegation is that on 16.05.2018, based on secret information, the Excise Inspector, Thodupuzha and his party raided the house occupied by the applicant herein after obtaining a search warrant from the jurisdictional Magistrate. Two cardboard boxes containing drugs, the possession of which requires a licence under the Drugs and Cosmetics Act, 1940, were found kept under the bed. From the above boxes, 5984 tablets of Zenegra 50 mg, 1616 tablets of Zenegra Red-100, 160 numbers of Termiphil Kit in 40 strips, and 6 bottles of Eskuf 100 ml syrup were seized. A further search was conducted in the compound of the house. Signs of some unusual activity were detected near the north eastern corner of the property and inside the boundary wall. It is alleged that 18 bottles of Eskuf 100 ml and 153 Nos. of 100 ml Codectuss syrup were found buried in the ground. Eskuf and Codectuss contain a prohibited narcotic drug by name Codeine Phosphate, the possession of which without a valid licence is an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985. The BA:4710/18 3 applicant was arrested and the aforesaid drugs were seized. 4. The learned counsel appearing for the applicant contended that the offence under Section 22 (C) of the NDPS Act is not made out against the applicant. According to the learned counsel, the allegation that the applicant had buried drugs in the premises of his house is clearly a false allegation. It is contended by the applicant that the premises from where the drugs were seized was taken on lease by his mother-in-law, Smt Saleela, on 22.3.2017, as per lease deed dated 23.3.2017. Smt Salila.R. is the Proprietor of M/s.Sneha Medicare, Perumbavoor. She has been issued with a licence in Form 20B by the Drugs Control Department and she is entitled to sell, stock, or exhibit (or offer) for sale, or distribute by wholesale, drugs other than those specified in [Schedules C, C(1) and X]. Reliance is placed on Annexure-III licence issued to Salila R., Proprietor of Sneha Medicare, to substantiate his contention. It is further submitted that the drugs, which were seized as aforesaid, were purchased by the aforesaid Saleela from Vashanth Pharma, Plot No.9, Nehru Street Sathya Morthi Nagar, Madurai-625 010, on 14.05.2018, and reference is made to Annexure-IV invoice relating to the purchase of the drugs. The drugs purchased as aforesaid was BA:4710/18 4 received by the licensee and the same was retained in her house before being shifted to the licensed premises, being VII/912-B1, Lotus Tower, Harihara Iyer Road, Perumbavoor. It is submitted that all these aspects were brought to the notice of the detecting officer, but his pleas of innocence were disregarded on the ground that the applicant is involved in an earlier crime registered under the Drugs and Cosmetics Act. The learned counsel has referred to Rule 52A of the NDPS Rules and it was contended that the Rules clearly provides that a licensed dealer or a licensed chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these Rules. The learned counsel has also referred to Rules 65 A & 67 A of the NDPS Rules, and it is contended that the Rule only prohibits sale, purchase and consumption except in accordance with the Drugs and Cosmetics Rules, 1945 provided that sale, purchase, consumption or use of psychotropic substances specified in Schedule 1 shall be only for the purposes mentioned in Chapter VII A. According to the learned counsel, Smt.Salila was having a valid licence to deal with the said drugs and hence, the roping in of the applicant, who had not violated any of the provisions of the Act or the Rules is on very frivolous grounds and materials. It is submitted that, the applicant BA:4710/18 5 has been undergoing detention from 16.05.2018 onwards for absolutely no reason and prays that he be released on bail. 5. The learned Public Prosecutor, on the other hand, very strenuously opposed the prayer. About 177 bottles of Codectuss and Eskuf Syrup contained in 100 ml bottles were seized. Each of the said bottle contained 10 ml of codeine. The total quantity of syrup seized would come to 17.7 liters which is much above the quantity prescribed as commercial in the schedule appended to the NDPS Act. The applicant has not been able to produce licence or any other document to show that he is entitled to store or possess the said drug. The applicant was earlier involved in Crime No.1953 of 2017 of the Thodupuzha Police Station which was registered under the Drugs and Cosmetics Act, 1940. The period of detention undergone has no significance in the instant case particularly when one considers the gravity of the offence committed by the applicant. Releasing the applicant on bail would send a wrong signal to society and persons such as the applicant, who indulges in trade of such deleterious substances are a danger to young and old alike. It is further contended that the Apex Court in **Md. Sahabuddin and Another** v. **State of Assam** [(2012) 13 SCC 491] had occasion to BA:4710/18 6 consider a case in which codeine phosphate was illegally transported by a truck driver. It is submitted that the relief of bail was denied to the accused having regard to the gravity of the offence. Attention of this Court is also drawn to Section 37 of the NDPS Act and it is contended that only if the twin conditions contained therein are satisfied, the applicant is entitled to be released on bail. 6. Since it was not evident from the case diary that the vendor of the Drugs or the mother-in-law of the applicant had been questioned to ascertain the genuineness of Annexures-III or IV, the learned Public Prosecutor was directed to get specific instructions with regard to the authenticity and genuineness of those records. 7. The learned Public Prosecutor, on instructions, has submitted that the investigating officer had questioned the vendor of drugs. He is the Proprietor of Vashanth Pharma. It appears from his statement that on 14.05.2018 the Proprietor had supplied the drugs as shown in Annexure-IV invoice and the same was sent through Lucky Travels to Sneha Medicare in Kerala, of which the mother-in-law of the applicant is the proprietress. The learned Public Prosecutor also does not dispute that the premises from BA:4710/18 7 where the drugs were seized has been leased out to the mother-inlaw of the applicant herein and she is a licensee under the Drugs and Cosmetics Act, 1940 with licence to deal with Schedule-H1 drugs as well. 8 **.** As rightly submitted by the learned Public Prosecutor, under Section 37 of the Act, a person accused of an offence punishable for offences involving commercial quantity can be released on bail only when the court is satisfied that there are reasonable grounds of believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail. The power of this Court to release the applicant on bail is subject to the restrictions under Section 37 of the Act. However, in the instant crime, the facts are otherwise. Unlike the facts in **Md. Sahabuddin's case** (supra) herein is a case where the mother-inlaw of the applicant was the licensee under the Act. She was having the licence to store H1 drugs as well. The drugs were found in the premises which were taken on lease by the said lady. The prosecution has no case that the invoices produced by the applicant herein are fabricated or that his mother-in-law is not having licence under the Act. In the instant case, when it is apparent that certain BA:4710/18 8 aspects of the matter has been ignored by the investigating officer, it would be a travesty of justice to ignore those aspects and defer its consideration to the stage of trial. The applicant has been in custody from 16.5.2018 and the investigation is almost over. I am of the view that it would result in failure of justice to force the applicant to be in custody till the trial is complete. The court's satisfaction within the meaning of Section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 248 of the Cr.P.C. Such a finding of guilty or not guilty can only be rendered after conclusion of the trial whereas the satisfaction that there are reasonable grounds for believing that the accused is not guilty as to be arrived at before the conclusion of trial, i.e., at any stage of investigation or in the course of trial itself. This Court cannot abdicate its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. In other words, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified BA:4710/18 9 in taking an alternative course other than recording its necessary satisfaction. Having regard to the facts and circumstances presented in the instant case, I am of the view that the applicant has made out a case for his grant on bail. It is made clear that expression of any opinion shall not be treated as an expression on merits of the case. 9. In the result, this application will stand allowed. The applicant shall be released on bail on his executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions: 1). The applicant shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for a period of three months or till final report is filed, whichever is earlier. 2). He shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. 3).He shall not commit any similar offence while on bail. 4). He shall not leave the State of Kerala without the prior permission from the court having jurisdiction. 5). He shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the BA:4710/18 10 passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** PS //TRUE COPY// P.A. TO JUDGE