Surendran v. Government of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939 Bail Appl. No. 8247 of 2017 ----------------- (O.R. NO.1 OF 2017 OF DRI/CHN/NDPS NOW PENDING AS S.C. NO.65/2017 ON THE FILES OF COURT OF SPECIAL JUDGE FOR THE NDPS ACT CASES, THODUPUZHA) ## PETITIONER/ACCUSED NO.2: SURENDRAN, AGED 53 YEARS, S/O. RAGHAVAN, PANIPPARAYIL HOUSE, KAKKACITY BHAGOM, KONNATHADY VILLAGE, IDUKKI DISTRICT. BY ADVS.SRI.GEO PAUL SRI.SANU MATHEW SRI.RADHIKA RAJASEKHARAN P. SRI.C.R.PRAMOD SRI.K.S.SREENATH KUM.LAYA MARY JOSEPH SRI.E.A.HARIS SRI.SONU AUGUSTINE ## RESPONDENT/COMPLAINANT: GOVERNMENT OF INDIA, REPRESENTED BY SENIOR INTELLIGENCE OFFICE, DRI/CHN THROUGH STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031 BY ADV. SRI.S.MANU, CGC THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06-03-2018 ALONG WITH B.A. NO.8146 OF 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **RAJA VIJAYARAGHAVAN V, J** ======================= B.A No.8247 & 8146 of 2017 ======================== Dated this the 6[th] day of March, 2018 ## **ORDER** - 1.These petitions seeking regular bail are preferred by the accused Nos. 1 and 2 in DRI/CHN/NDPS/OR1/2017 now pending as S.C. No. 65 of 2017 on the files of the Court of the Special Judge for NDPS Cases, Thodupuzha. - 2.The petitioner in B.A. No.8146 of 2017 is the 1[st] accused and the petitioner in B.A. No.8247 of 2017 is the 2[nd] accused in the aforesaid Crime. - 3.The case against the petitioners resulting in the registration of the above referred Crime can be summarized thus: On 5.5.2017, the Assistant Director, Directorate of Revenue Intelligence (DRI), Cochin, received specific information that a person by name P.K.Kareem and his associate have concealed 5 kgs of Hashish oil in House No.XI/724 of Adimali Panchayat. The Additional Director, DRI, directed Sri.Vivek, the Intelligence Officer to take appropriate action. The said officer submitted necessary report before his _2_ B.A:8247& 8146 of 17 etc. superior officer and proceeded to Adimali. A search was conducted in the house of the 1[st] accused in the presence of the witnesses. A bag was found kept under the cot in a room adjacent to the kitchen. Five plastic covers containing a black colored semi liquid substance were found inside the bag. The substance was tested and it was found to be Hashish oil. The total quantity was found to be 5 kgs. Samples were collected and a mahazar was drawn up. A report was submitted before the Assistant Director under Section 57 of the NDPS Act on the same day itself. It appears that thereafter, the Assistant Director ordered that the investigation be taken over by the Senior Intelligence Officer. On the same day itself, the 1[st] accused was interrogated and he disclosed the role of the 2[nd] accused. The presence of the 2[nd] accused was also secured. The statement of accused Nos. 1 and 2 were later recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985. On 6.5.2017, the arrest of accused Nos. 1 and 2 were recorded and they were produced before the Judicial Magistrate of the First Class, Kunnumpuram, along with the documents and material objects. The accused were remanded to judicial _3_ B.A:8247& 8146 of 17 etc. custody and the seized contraband along with the samples were ordered to be produced before the Judicial Magistrate of the First Class, Adimali, for preparation of inventory under Section 52A of the NDPS Act. The samples were later forwarded to the Chemical Examiner's Laboratory at Ernakulam and by report dated 18.9.2017, it was reported that the seized material was Hashish oil (Ganja oil) or liquid Cannabis. After complying with the formalities, a complaint was filed before the Special Court on 31.10.2017. - 4.Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. - 5.The learned counsel appearing for the 1[st] accused contended that he is totally innocent. According to the learned counsel, the 1[st] accused was arrested on 5.5.2017 and was kept under illegal detention. He was produced before the learned Magistrate at Kunnumpuram, who had no jurisdiction in the matter. The fact that the accused were brought to Ernakulam on 5.5.2017 and their arrest was recorded only on 6.5.2017 reveals that the DRI officers were bent on fabricating a case involving a grave crime against the accused. The failure of the _4_ B.A:8247& 8146 of 17 etc. detecting officer to produce the accused and the material objects before the jurisdictional Magistrate at Adimali should be viewed with suspicion. Though the learned Magistrate at Kunnumpuram had ordered that the material objects be produced before the Adimali Magistrate without delay, the contraband articles were produced only later. It is further submitted that the offence was detected and articles were seized within the jurisdiction of the Special Court at Thodupuzha and nothing prevented the DRI officials from producing the seized items before the Special Court itself. The learned counsel would further urge that the final report was filed beyond the statutory period of 180 days and in that view of the matter the accused were entitled to statutory bail. - 6.The learned counsel appearing for the 2[nd] accused submitted that a proper evaluation of the materials collected by the DRI and produced along with the complaint would reveal that the only evidence connecting the 2[nd] accused with the Crime is the alleged confessional statement made by the 1[st] accused. According to the learned counsel, there is total non-compliance of the provisions of Sections 42 and 57 of the NDPS Act. Nothing was seized from the possession or domain of the _5_ B.A:8247& 8146 of 17 etc. petitioners and the only allegation is that it was from the 2[nd] accused that the contraband articles were sourced by the 1[st] accused. The learned counsel further invited my attention to Annexure-A7 authorisation and Anneuxre-A8 mahazar to contend that it was Vivek.V., the Intelligence Officer, who was authorised by the Assistant Director to conduct search of the premises. It is the said Officer who had prepared the mahazar. The seizure was completed at 7.45 p.m. on 5.5.2017. Though as per the mahazar, only the Intelligence Officer and a Senior Intelligence Officer were present, during the stage of hearing, the DRI has taken a stand that all their officials were at Adimali in connection with the detection and seizure. The stand taken by the DRI before this Court is totally against their complaint. It is further submitted that, on the same day itself, summons was issued to the accused under Section 67 of the NDPS Act and the place of issuance of the summons is given as Adimali in Annexure-A10. It is evident from Annexure-A9 that Section 57 report was submitted before the Assistant Director on 5.5.2017 itself and the same was prepared at Palarivattom. This could only have been after the Intelligence Officer had come back to Palarivattom from Adimali after 7.45 p.m. on that _6_ B.A:8247& 8146 of 17 etc. day. Thereafter, the accused were brought to Palarivattom on the same day itself and their statement was recorded on 5.5.2017 late in the night. Though they had allegedly confessed to the Crime, their arrest was recorded only on 6.5.2017 at 2.15 p.m. There is no reason why the DRI officials had waited till noon on 6.5.2017 to effect the arrest. It is also submitted that even in Annexure-A15 arrest memo, what is noted is that the accused would be produced before the Special Court and not before the Judicial Magistrate of the First Class, Kunnumpuram, which court had no jurisdiction. According to the learned counsel, the 2[nd] accused was kept in illegal detention and his confessional statement was recorded in doubtful circumstances and he was roped in without any materials whatsoever. In view of the numerous inconsistencies in the complaint and the fact that the procedure for detection and seizure are wrought with violation of the formalities, the continued detention of the 2[nd] accused is uncalled for. The learned counsel prays that the 2[nd] accused be released on bail. - 7.The learned standing counsel appearing for the DRI very strenuously countered the submissions. He has also filed two statements which are dated 30.11.2017 and 24.1.2018. It is _7_ B.A:8247& 8146 of 17 etc. submitted that on receiving information about the concealment of Hashish oil in the house of the 1[st] accused, all the available officers in the DRI unit at Kochi including the Additional Director had proceeded to Adimali. After the detection of the contraband from the house of the 1[st] accused, he was interrogated and the 1[st] accused revealed that he had procured the contraband from the 2[nd] accused. Immediately the 2[nd] accused was brought to the house of the 1[st] accused. Taking note of the large quantity of Hashish oil that was seized and also taking into account the fact that the accused Nos. 1 and 2 are influential, the Assistant Director of DRI ordered the Senior Intelligence Officer, who is the complainant herein, to take over the investigation. According to the learned counsel, it is not unusual for the DRI to delay the recording of the arrest of the accused. The statement of the suspected accused were recorded under Section 67 of the NDPS Act and after taking down the statement of the relevant witnesses, the arrest was recorded on 6.5.2017. It is further submitted that all the formalities mandated under the Act were complied with in letter and spirit. _8_ B.A:8247& 8146 of 17 etc. 8.It is further urged that more than 5 kgs of Hashish oil classified as “commercial quantity” was seized from the possession of the 1[st] accused. The same was supplied by the 2[nd] accused to the 1[st] accused. The parameters of Section 37 of the NDPS Act, 1985 will have to be satisfied. Unless there are reasonable grounds for believing that the accused are not guilty of the offence and that they are not likely to commit any offence while on bail, the accused cannot be enlarged on bail. Highlighting the deleterious effects and deadly impact of Hashish oil, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities by traffickers such as the petitioners. The learned Standing counsel placed reliance on the decisions of the Apex Court in **Union of India (UOI) v. Shri Shiv Shanker Kesari** [(2007) 7 SCC 798] and **Union of India v. Ram Samujh and Another** [(1999) 9 SCC 429] to support his contentions. - 9.The learned counsel would further submit that the petitioners are not entitled to statutory bail as the complaint was filed before the jurisdictional court on 3.11.2017 on which day the bail application was filed. The bail application came up for consideration on 4.11.2017 and the matter was posted for _9_ B.A:8247& 8146 of 17 etc. hearing on 8.11.2017. The accused had advanced arguments on 8.11.2017 and the petition was rejected on 13.11.2017. According to the learned counsel, as the complaint was filed before the consideration of the bail application, the benefit under the proviso to Section 167 (2) cannot be extended to the accused. To support his submission, the learned counsel referred to the decision of the Apex Court in **State of M.P. V. Rustam and Others** [1995 Supp.(3) SCC 21] wherein it was held that the availability of the right of compulsive bail is the date on which the bail application comes up for consideration and not on the presentment of the petition for bail. The learned counsel would also rely on the decision of a three Judge Bench of the Patna High Court in **Kanhaiya Mahto v. State of Bihar** [Laws (PAT) 1999 9 36] to buttress his submission. - 10.I have considered the submissions advanced and have gone through the materials which are made available. - 11.The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. The limitations on granting of bail specified in clause (b) of sub Section (1) of _10_ B.A:8247& 8146 of 17 etc. section 37 of the Act 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. It can be granted in a case where there are reasonable grounds for believing that the accused are not guilty of such offence and that they are not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) is “reasonable grounds” which expression means something more than prima facie grounds. As held in **Shiv Shanker Kesari** (supra), it connotes substantial probable causes for believing that the accused are 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 are not guilty of the offence charged. However, this Court while considering the application for bail with reference to Section 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 _11_ B.A:8247& 8146 of 17 etc. accused are 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 judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail the accused are not likely to commit any offence and there should also exist some materials to come to such conclusion. 12.The discrepancies pointed out by the learned counsel appearing for the petitioners are not of such a nature which would persuade this Court to bypass the express mandate under Section 37 of the Act. Those are matters which are to be considered by the trial court at the appropriate stage. The trial court may have to exercise greater caution and scrutiny to decide whether or not to accept such evidence as regards arrest, search and seizure. At the stage of consideration of bail application, a much more detailed probe is not warranted lest it causes prejudice to either sides. After going through the records, I am of the considered view that a strong prima facie case is made out against the accused in view of the detection of a large quantity of Hashish oil of about 5 kgs. The report of chemical analysis supports the prosecution case. _12_ B.A:8247& 8146 of 17 etc. 13.The contention of the learned counsel that there has been some procedural violations which would entitle the petitioners to be released on bail cannot be accepted. In **Supdt., NCB, Chennai Vs. R.Paulswamy** (2001 Cri.L.J.117), the Apex Court had occasion to hold this : "In the light of Section 37 no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. Adopting the exceptional course of granting bail to an accused involved in the offence under NDPS Act on ground that there was prima facie violation of Section 52 and there was prima facie non-compliance with Section 57 of the Act, was not proper. Compliance of Ss.52 and 57 is matter which could be established only at the trial and could not be prejudged at the stage of consideration for bail. The minimum which the lower Court should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court during bail stage regarding the compliance of the formalities mentioned in those two sections. The lower Court _13_ B.A:8247& 8146 of 17 etc. even had not recorded a finding in terms of Section 37 of the Act which is sine qua non for granting bail to an accused involved in the offence under the Act. - 14.The contention advanced by the learned counsel appearing for the 1[st] accused that the accused are entitled to statutory bail also cannot be accepted. The accused were remanded on 6.5.2017 and on the date of filing of the bail application, the final report was filed. The bail application was considered later. Those aspects were considered by the learned Special Judge in detail and it was held that the petitioners were not entitled to statutory bail. I find no reason to take a different view. - 15.Having considered the submissions and after having gone through the materials on record, I am afraid that there are no substantial probable causes for believing that the accused are not guilty of the offence charged. The petitioners have 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 they are not guilty of the offence charged. _14_ B.A:8247& 8146 of 17 etc. I am of the view that the petitioners are not entitled to be released on bail at this stage. I find no merit in these petitions and the same are dismissed. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** ps/6/3/18 //true copy// P.S. To Judge