Sybu Thankachan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943 BAIL APPL. NO. 4082 OF 2021** **(Crime No.1992 of 2018 of the Peroorkada Police Station)** ## **PETITIONER/S:** SYBU THANKACHAN AGED 29 YEARS KOLLAPALLI VEEDU, PANIYARKUTTY KARA, RAJAKKADU P.O. IDUKKI, PIN - 685566 BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL ARUN POOMULLI BIJU VIGNESWAR SURABHI SANTHOSH MEERA M. ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **19.07.2021, THE COURT ON 26.08.2021, DELIVERED THE FOLLOWING:** **B.A.No.4082 of 2021** 2 ## **ORDER** ## **Dated this the 26[th] day of August, 2021** **This is the 6[th] application for bail submitted by the first accused in S.C.No.743 of 2019 pending on the files of the Additional Sessions Court-IV, Thiruvananthapuram. Of the earlier five applications, one was dismissed, two were withdrawn, one closed with liberty to approach the trial court and interim bail for 15 days granted in the last application.** **2. The case against the petitioner originated from Crime No.1992 of 2018 registered at the Peroorkada Police Station for offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution allegation is that, on 07.11.2018, the petitioner along with accused Nos.2 and 3 were apprehended by the police while transporting 10.426 Kgs of Hashish. The petitioner was arrested on 07.11.2018 and is continuing in judicial** **B.A.No.4082 of 2021** 3 **custody.** **3. Heard Sri.Ranjith.B.Marar, learned Counsel** **for the petitioner and Sri. R. Dhanil, learned Public Prosecutor.** **4. Learned Counsel for the petitioner reiterated the submission of there being no likelihood of the case being listed for trial in the near future, resulting in the petitioner’s incarceration continuing indefinitely. It is contended that in view of the patent violation of Section 50 of the NDPS Act, there is not even a remote possibility of the petitioner being convicted, which factor is sufficient for granting bail, despite the rigour of Section 37 of the NDPS Act. In support of the contention attention is drawn to the following sentences in the seizure mahazar.** “¾ÞX çÉøâVA¿åçÉÞÜßØí Øíçx×XåØÌîí §XØíæɵí¿V dÉçÎÞ¼íå _**M.K.**_ ¦æÃKá¢åÈßB{áæ¿ èµÕÖ¢ ÎÏAáÎøáKí ©æIKá¢åÕßÕø¢ µßGß ÕKÄÞæÃKᢠÈßB{áæ¿åçÆÙÉøßçÖÞÇÈ È¿JáKÄßÈí ²øá μßØíçd¿xßæaçÏÞ ·ØxÁí ©çÆcÞ·ØíÅæaçÏÞ çØÕÈ¢ ¦ÕÖcæM¿ÞæÎKíåÉùEí ÎÈØßÜÞAßÏÄßWå ·ØxÁí ©çÆcÞ·ØíÅX ÉøßçÖÞÇߺîÞW ÎÄßæÏKí ÉùÏáµÏÞW ¾ÞX **B.A.No.4082 of 2021** 4 ÕßÕø¢ µáùÕXçµÞâ ®µíèØØí ®XçËÞÝíØíæÎaí ¦aí ¦aß_ÈVçAÞGßµí ØíæÉ×cW ØíµbÞÁí ØVAßZ §XØíæɵí¿V ¥ÕVµæ{å _**CPO5911**_ ÕÖ¢ çø¶ÞÎâÜ¢ ¥ùßÏߺîí.....” **A rough translation of the statements reads as under:** _**“I told the accused that I am Pramoj MK Sub Inspector of Police, Peroorkada Police Station and that I had received information that the accused are in possession of drugs. They made aware that they can seek the service of a Gazetted Officer or Magistrate for searching their body. On the accused stating that they can be searched by a Gazetted Officer, I gave written intimation to the Excise Enforcement and Anti-Narcotic Special Squad Circle Inspector, Kuravonkonam through CPO 5911.”**_ **Reliance is also placed on the wordings in the notice dated 07.11.2018, by which the Sub Inspector had sought the presence of the Gazetted Officer. The relevant portion of the letter reads** ## **as under:** “§çK ÆßÕØ¢ (07.11.2018) ®ÈßAí ÜÍߺî øÙØc ÕßÕøJßæa ¥¿ßØíÅÞÈJßW µÕ¿ßÏÞV ç·ÞZËí Üߢ·íØí çùÞÁßW _**TTC**_ ¼¢·í×Èá ØÎàÉ¢ µÞùßW ÙÞ×à×í ÕßÜíÉÈÏíAÞÏß §øáK èØÌá ÄCºîX, ØHßÎÞÄcá ®KßÕøáæ¿ çÆÙÉøßçÖÞÇÈÏíAí ·ØxÁí ¦ËàØùáæ¿ ØÞKßic¢ ¦ÕÖcÎÞÏÄßÈÞW **B.A.No.4082 of 2021** 5 ## ¥BÏáæ¿ ØÞKßic¢ çÕÃæÎKí ¥çÉfߺîáæµÞUáKá. ” **English Translation** _**“Based on the secret information received by me today (07.11.2018), the presence of a Gazetted Officer is required while searching the body of Sybu Thankachan and Sunny Mathew, sitting inside a car on the Kavadiyar Golf Links Road near TTC junction to sell Hashish. Hence, your presence is requested.**_ **”** **Based on the above material, it is argued that the Complainant/Sub Inspector had failed to make the accused aware of their right to be searched in the presence of a Magistrate or Gazetted Officer. It is alleged that the Sub Inspector had actually were searched and seized the contraband before securing the presence of the Gazetted Officer. The search and seizure being in patent violation of Section 50 of the NDPS Act, the petitioner is entitled to be enlarged on bail, since the violations constitute sufficient material for arriving at the satisfaction of the petitioner being not guilty. To buttress the argument, reliance is placed on the decisions of the** **B.A.No.4082 of 2021** 6 **Honourable Supreme Court in** _**Ali Mustaffa v. State of Kerala [(1994) 6 SCC 569], K.Mohanan v. State of Kerala [(2000) 10 SCC 222], Man Bahadur v. State of HP [(2008) 16 SCC 398] and Sarija Banu @ Janarthani @ Janani and another v. State [(2004) 12 SCC 266]**_ **and the decision of this Court in** _**Muhammed Ameen and another v. Narcotic Control Bureau, Cochin [2020 (1) KHC 645]**_ **.** **5. The learned Public Prosecutor opposed the prayer and submitted that the practice of filing repeated applications for bail should be deprecated. It is argued that the continued incarceration and possible delay in the case being listed for trial had prompted this Court to grant interim bail to the petitioner earlier and therefore, those reasons cannot be urged again. The ground regarding violation of Section 50 of the NDPS Act, though raised in the previous bail applications, was not urged during the course of argument and hence, the petitioner is estopped from raising that ground.** **B.A.No.4082 of 2021** 7 **6. As mentioned at the outset, this is the 6[th] bail application submitted by the petitioner. Of course, an accused is entitled to file successive bail applications on there being a change in the circumstances. The court, on the other hand, is bound to consider the reasons and grounds which had prompted it to dismiss the earlier applications. This position is succinctly laid down by the Apex Court in** _**Kalyan Chandra Sarkar v. Rajesh Ranjan, [(2004) 7 SCC 528].**_ **Relevant portion of the judgment is extracted hereunder;** _**“ 20. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail.”**_ **7. The Apex Court has also held that the** **continued incarceration of the accused and** **possibility of the trial being delayed, cannot be** **B.A.No.4082 of 2021** 8 **reasons for granting bail when the offence alleged is grave in nature. The offence alleged against the petitioner is no doubt grave. Hence, the long incarceration and delay in conducting trial cannot persuade this court to grant bail, particularly when those grounds were urged and considered in the earlier applications.** **8. The next contention is regarding the alleged violation of Section 50 of the Act, which according to the learned Counsel, provides sufficient material for this Court to arrive at the satisfaction that the petitioner is not guilty.** **9. The Honourable Supreme Court in** _**Union of India v. Thamisharasi and others [JT 1995 (4) SC 253]**_ **has held that Clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code of Criminal Procedure. The two limitations are (I) an opportunity to the public prosecutor to oppose the bail application and (ii) satisfaction of the** **B.A.No.4082 of 2021** 9 **Code that 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. In** _**Sarija Banu**_ **(supra) the Apex Court has held that, while considering the bail application, compliance with Section 42 is a relevant factor to be taken into account. According to the learned Counsel for the petitioner, the dictum in** _**Sarija Banu**_ **is applicable with regard to Section 50 also. The decision in** _**Muhammed Ameen**_ **is pressed into service in support of the contention that for deciding the question whether there are reasonable grounds for believing the accused to be not guilty, patent violation of Section 50 can also be taken into account.** **10. The legal position that Section 50 mandates that the accused should be made aware of their right to be searched in the presence of a Gazetted Officer or Magistrate is, no longer** _**res**_ _**integra**_ **. Violation of the said mandatory** **B.A.No.4082 of 2021** 10 **requirement can result in the accused being acquitted. As far as the case at hand is concerned, the seizure of the contraband was not effected from the body of the accused alone, but also from their vehicle. As held in** _**State of Punjab v. Baldev Sing [(1999) 6 SCC 172],**_ **conviction cannot be based solely on recovery of illicit article by a personal search conducted in violation of the requirements under Section 50. But, the position is different when illicit articles are recovered from the accused’s vehicle also. In** _**State of Punjab v. Baljinder Singh and another [(2019) 10 SCC 473]**_ **, it has been held that if there is materials other than recovery of illicit article from the person of the accused, including recovery of illicit articles from the vehicle or container or premises, the said materials can be relied on, even if the search was not in accordance with Section 50. Hence, the ground based on the alleged violation of Section 50 is liable to be rejected.** **B.A.No.4082 of 2021** 11 **11. The contention that the contraband was recovered before securing the presence of the Gazetted Officer is raised based on the wordings in the intimation sent to the Gazetted Officer. According to the learned Counsel, the mention about Hashish oil in the letter goes to show that the accused were searched and the contraband seized. The prosecution case is that the Sub Inspector/complainant had prior information that the accused were in possession of illicit drugs. As to whether the contraband in the possession of the accused is ‘Hashish Oil’ was also informed, is a matter to be decided after adducing evidence. Being so, I am unable to accept the contention that the alleged violation constitute sufficient material to arrive at the conclusion of the accused being not guilty.** **For the aforementioned reasons, the bail application is dismissed.** **Considering that the petitioner is undergoing incarceration since 07.11.2018, the learned** **B.A.No.4082 of 2021** 12 **Additional Sessions Judge is directed to take earnest efforts to complete the trial within six months of receipt of a copy of this order.** **Sd/-** **V.G.ARUN JUDGE** **Scl/**