THUMBATUKANDILEVY v. UNION OF INDIA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 23[RD] DAY OF AUGUST 2023 / 1ST BHADRA, 1945`** ## **`CRL.MC NO. 1386 OF 2023 SC 1065/2022 OF II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM`** ## **`PETITIONER/3RD ACCUSED:`** ``` THUMBATUKANDILEVY,AGED28YEARS,S/O.THUMBA TUKANDIMAKAKILATHOMASALBERT,RESIDENTOF5-CONGO, PATELNANJUNDAPPALAYOUT,MURALISHIVARAMKARATHNAGAR, - BANGALORE(INDIANADDRESS).,PIN560077 ``` ``` BYADVS. PIRAPPANCODEV.S.SUDHIR AKASHS. GIRISHKUMARMS V.S.VARALEKSHMI DEVIKAJAYARAJ MARYKUNJUJOHN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` UNIONOFINDIA,THROUGHINTELLIGENCEOFFICER, NARCOTICSCONTROLBUREAU,SUBZONE,CIVILSTATION, - COCHIN,PIN682030 BYADVS. MANUS.,DSGOFINDIA ADV.K.R.RAJAGOPALANNAIR,SPECIALPROSECUTOR RAJAGOPALANNAIRK.R. ``` ``` SRI.NIMAJACOB,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 23.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C. No.1386 of 2023 2 ## **ORDER** The petitioner herein is the 3[rd] accused in OR No.1/2022 of the Narcotic Control Bureau, Sub Zone, Kochi. The aforesaid case has its origin in NDPS Crime No.25 of 2021, registered by the Excise Range Office, Thiruvananthapuram. 2. The petitioner, along with the rest of the accused, are accused of having committed offence punishable under Section 8(c), 22(c), 27A, 28 and 29 of the NDPS Act, 1985. 3. The facts of the case are as follows: On 9.11.2021 at about 10.50 am, the Excise Inspector, Attupuram Excise Check post, received information that a certain Sajith S was traveling in a KSRTC bus bearing registration No.KL 15 8712 and that he was carrying Narcotic Drugs. Sajith was intercepted, and from his possession, 80g of MDMA was seized on 9.11.2021. The accused was arrested, and the crime was registered. Owing to the gravity of the allegations, the investigation was made over to the NCB Sub Zone, Kochi. During the investigation that was carried out, it was revealed that Sajith was dispatched to Bangalore to purchase MDMA by his friends Vishnu Vikraman (A-7) and Amal ( A-6). He Crl.M.C. No.1386 of 2023 3 also stated that he had collected the item at a place called Kamanahally in the State of Karnataka. Details were collected from the phone of Mr Sajith, which revealed the involvement of a person by name Shuaib. Mr. Shuaib was arrested, and he is alleged to have disclosed the involvement of a person by name Rahul M.G. and an African National by name Curtis. Summons were later issued to Tumba Tukandi Levy, the petitioner herein, and his statement was recorded. Based on the materials collected, the Petitioner was arrested and later remanded by the Court. 4. The prosecution alleges that in pursuance to the criminal conspiracy and in course of the same transaction, on the basis of the instructions received from Arnold Nkuna @ Curtis, the Petitioner procured, processed, transported and attempted to supply and entered into a criminal conspiracy with A-1, A- 2, A- 3, A-5, A-6 & A7 in the illicit trafficking of deceased commercial quantity of 80 g of methamphetamine which was recovered from the possession of A-1 Sajith. 5. Sri. Pirappancode V Sudheer, the learned counsel appearing for the petitioner, submitted that a perusal of the complaint would disclose that the NCB has not collected any materials whatsoever to link the petitioner with the Crime. According to the learned counsel, the prosecution relies on Crl.M.C. No.1386 of 2023 4 the alleged statement furnished by the petitioner under Section 67 of the NDPS Act, 1985, to connect him with the trafficking of drugs. Relying on the law laid down by the Supreme Court in **Tofan Singh vs. State of Tamil Nadu** (2013) 16 SCC 31, the learned counsel urged that no reliance can be placed on any such statement. It is further submitted that the prosecution has failed to collect any material to show that the petitioner had entered into any conspiracy with the rest of the accused. Referring to the materials collected by the prosecution, it is urged that one of the incriminating materials is the call details collected from a phone registered in the name of a certain Hmangaihsanga. It is submitted that no material has been collected to reveal the identity of the said person, and his statement has not been recorded. The next material collected by the NCB is the transactions in a Bank account maintained by a person by the name Bidya Sagar. There is no tangible evidence linking the petitioner to these individuals. Neither the call records from the said phone nor the transactions from the associated bank account can be definitively tied to the petitioner. Another allegation is that the petitioner communicated with the primary accused via instant messaging apps and Instagram. Since the phone is not that of the petitioner, there is no point in attributing the messages that emanated from the phone Crl.M.C. No.1386 of 2023 5 to the petitioner. According to the learned counsel, the allegations leveled against the petitioner lack any foundational basis, and the proceedings against him are to be terminated at the threshold stage itself. 6. In response, Sri. Navaneeth, the learned counsel appearing for the NCB, would point out that voluminous materials have been collected by the NCB to link the petitioner with the crime. It is submitted that in exercise of jurisdiction under Section 482 of the Code, this Court will not be justified in minutely scrutinizing the materials that are yet to be presented and evaluated in their proper context. He would remind that the jurisdiction under the provision must be exercised sparingly, reserving it for exceptional circumstances, and should not be exercised to stifle a legitimate prosecution. Reliance is placed on the law laid down in **Neeharika Infrastructure Pvt Ltd v. State of Maharashtra and Others** [2021 SCC Online SC 315] to substantiate his contention. It is further submitted that enough materials have been collected to substantiate that the phone and bank account were actually being used by the petitioner and also that he was in constant touch with Curtis, who was undergoing incarceration in another case. It is further submitted that an application was submitted before the jurisdictional court seeking further investigation, and the same Crl.M.C. No.1386 of 2023 6 stands allowed by order dated 26.2.2023. As the order granting permission to conduct further investigation has not been challenged, no interference is warranted at this juncture, contends the learned counsel. 7. I have considered the submissions advanced and have perused the records. 8. The specific case of the learned counsel is that the prosecution has not collected any materials to link the petitioner with the crime. Having considered the nature of the allegations and the materials so far collected, it would be premature to deduce that no offense has been established against the petitioner at this stage. As to whether the materials collected by the prosecution would hold its own in the trial court cannot be weighed and considered by this Court at this stage. The contention advanced by the learned counsel, such as the worthiness of the statement recorded under Section 67 of the Act, whether the prosecution succeeds in linking the calls, messages, and money transactions with the petitioner on the basis of the materials collected fall within the domain of consideration by the Trial Court at the appropriate stage. It would be prudent for this Court to abstain from expressing any opinion regarding the merits of the allegations at this stage so as to prevent any prejudice to either the prosecution or the accused. Crl.M.C. No.1386 of 2023 7 Furthermore, I find that the application filed by the prosecution seeking further investigation stands allowed by the Court. If that be the case, it would not be proper for this Court to adjudicate on the merits of the materials so collected. I find that the application for bail filed by the petitioner is pending consideration of this Court. If there is any delay in concluding the further investigation, the petitioner can raise his contentions before the Court and seek bail. In the facts and circumstances and taking note of the pendency of the further investigation, the petitioner has not made out any case for interference. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C. No.1386 of 2023 8 ## **`APPENDIX OF CRL.MC 1386/2023`** ## `PETITIONER’S ANNEXURES:` ``` AnnexureITRUECOPYOFTHEVOLUNTARYSTATEMENT, ALLEGEDTOHAVEBEENGIVENBYTHE PETITIONERU/S67OFTHENDPSACT,1985 BEFORETHEINTELLIGENCEOFFICER,NCB,SUB ZONE,COCHIN AnnexureIITRUECOPYOFTHEVOLUNTARYSTATEMENT ALLEGEDTOHAVEBEENGIVENBYTHE2ND ACCUSED AnnexureIIITRUECOPYOFTHESTATEMENTALLEGEDTOHAVE BEENGIVENBYARNOLDNKUNAALIAKURTIS AnnexureIVTRUECOPYOFTHEJUDGMENTDATED10.01.2022 OFTHEHON'BLESUPREMECOURTINSLP CRIMINALNO.242OF2022&CONNECTEDCASES AnnexureVTHECOPYOFTHEFINALREPORTFILEDIN O.R.NO.01/2022/NCB/SZ/COKINS.C.1065/2022 AnnexureVITHETRUECOPYOFTHEJUDGMENTDATED 31.07.2018INCRL.APPEALNO.949/2018OFTHE HON'BLESUPREMECOURT AnnexureVIITHETRUECOPYOFTHEORDERDATED18.11.2022 INCRIMINALMPNO.2070/2022INSC NO.1065/2022(ORNO.1/2022NCB/SV/COK)OF THEADDITIONALSESSIONSJUDGEII, THIRUVANANTHAPURAM,REFUSINGBAILTOTHE PETITIONER AnnexureVIIITHETRUECOPYOFTHEORDERINCRIMINAL APPEALNO.1841-1842/2022OFTHEHON'BLE SUPREMECOURT,DATED21.10.2022 ``` Crl.M.C. 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