Jabir vs State Of Kerala
2021 Latest Caselaw 16103 Ker

BAIL APPL. NO. 5017 OF 2021            1




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MRS. JUSTICE SHIRCY V.
     TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
                       BAIL APPL. NO. 5017 OF 2021
AGAINST THE ORDER/JUDGMENT IN CRMP 538/2021 OF DISTRICT COURT &
 SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD, KASARGOD
   (CRIME NO.83 OF 2021 OF BADIADKA POLICE STATION, KASARAGODE
                                 DISTRICT)
PETITIONER/ACCUSED NO.2

            JABIR
            AGED 31 YEARS
            S/O.YOUSAF, R/AT BISMILLA MANZIL, NATIONAL NAGAR,
            ULIYATHADKA, MADHUR VILLAGE, KASARAGOD TALUK,
            KASARAGOD DISTRICT.
            BY ADVS.
            SMT.HEMALATHA
            SRI.BINU GEORGE


RESPONDENT/STATE

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM, PIN - 682 031.

OTHER PRESENT:

            SRI. C.N.PRABHAKARAN- SR.P.P



     THIS   BAIL   APPLICATION    HAVING     COME   UP   FOR   ADMISSION   ON
03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 5017 OF 2021            2




                                       ORDER

The petitioner who is the second accused in Crime No.83 of 2021

of Badiadka Police station registered for the offences punishable under

Sections 8(c) read with 22(c) and 29 of Narcotic Drugs and

Psychotropic Substances Act (for short 'NDPS Act') has moved this

application for his release on bail.

2. The prosecution allegation is that on 5.2.2021 secret

information was received by the respondent that narcotic drugs are

being transported through the public road in a vehicle. After getting

this information while he was on law and order duty along with his

team, found an Innova car bearing Reg.KA-42-4391 proceeding

through the public road at Meethal Bazar in Badiadka village and then

he intercepted the vehicle and examined the passengers of the

vehicle. On inspection narcotic drugs was found in the possession of

the accused and the same was seized by the police officials and

thereby the case was registered against all the three passengers in the

vehicle.

3. The petitioner has been in custody since 5.2.2021.

4. Heard the learned counsel for the petitioner as well the

learned Public Prosecutor.

5. The learned counsel for the petitioner would submit that the

petitioner is totally innocent of the allegations levelled against him. In

fact no contraband article was seized from him and he has no

complicity in the alleged crime. But he is undergoing unnecessary

incarceration from the date of arrest. This application is vehemently

opposed by the learned public prosecutor contending that MDMA

having 179.16 grams without any license was detected. It is also

pointed out that this petitioner was driving the vehicle , accused No.1

was sitting beside him and the 3 rd accused on the back seat and they

together were transporting the drug which was concealed in the track

suit of the 1st accused. When the vehicle was intercepted by the police,

the 2nd accused tried to take the vehicle and he did not stop the

same though the police team had given signal of the same. Then they

chased the vehicle and it was intercepted which resulted in detection

of commercial quantity of drugs from the possession of the accused.

On investigation it was revealed that they have purchased the same

from State of Karnataka and they remained there for 3 days in order

to collect the same and transport it to Kerala in the vehicle bearing No.

KA-42-4391. Hence, the investigation of the case is only in progress

and the investigating agency has to probe into the details and to find

out the source of drugs collected from the accused. Hence, seeks for

dismissal of the petition.

6. It is to be noted that the quantity involved is commercial

quantity.

As NDPS Act is a special enactment, it has to be borne in mind that

the power to grant bail, to an accused arrested with commercial

quantity of contraband articles and certain provisions of the Act, are

subject to the restrictions contained in Section 37 of the Act.

Section 37 of the NDPS Act read as follows:

"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under Section 19 or section 24 or section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless -

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub- section (1) 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."

Section 37 starts with a non obstante clause and certainly it should be

given its due meaning as it is intended to restrict the powers to grant

bail. It is also significant to note that under the NDPS Act, the burden

of proof lies on the accused and not on the prosecution

7. At the outset it is to noted though the learned counsel

submitted that he was entrusted by the owner of the vehicle to drive

the vehicle for the other accused and thus he happened to be in the

vehicle as instructed by him. But he has absolutely no connection with

the other accused in the case and he has not involved in the alleged

transaction of commercial quantity of narcotic drug. But it is significant

to note that this petitioner has not raised such a contention in the bail

application. Only at the time of the argument the learned counsel

submitted that he is not the owner of the vehicle and was only a

driver entrusted by the owner of the vehicle to facilitate the accused to

travel from Mangalore to Kerala. But the prosecution case itself is that

on the basis of the secret information, he got suspicion on seeing the

vehicle and thus intercepted the same. But the petitioner who was

behind the wheels did not stop the vehicle on seeing the police. So

they had to chase the vehicle and they intercepted the same with

another police vehicle, for inspection. As mentioned above unlike in

other cases, the burden of proof lies on the accused to prove that he is

innocent. Of course the provisions of Sec.37 of the Act also provides

the legal norms to be applied in determining whether the accused is to

be released on bail when commercial quantity of drugs are involved .

When all these matters are taken into consideration the materials on

record are not sufficient to show that the petitioner was totally

innocent of the alleged transaction of narcotic drug by the 1 st and 3rd

accused and he was only driving the vehicle as entrusted by its owner

without any knowledge that he was transporting narcotic druges. It is

also to be noted that the investigation of the case is not over and the

Investigating Agency has to collect more details regarding the source

of narcotic drug collected by the accused including the petitioner from

the state of Karnataka.

8. The learned Public Prosecutor has also pointed out that the

call details of the mobile phone of the petitioner had been collected

and CC TV footages were also taken and all those materials would

indicate the complicity of this petitioner and the seriousness of the

alleged crime.

In view of all the facts involved in this case I am of the opinion

that if the petitioner is enlarged on bail that will definitely hamper the

smooth course of investigation. Moreover there is every possibility to

flee from justice totally upsetting the investigation of the case.

Therefore, I am not inclined to take a lenient view and accept the

request of the learned counsel for the petitioner at this stage though

his wife is pregnant and there is nobody to take care of her as

submitted by the learned counsel for the petitioner, mainly considering

the seriousness of the offences and the disruptive use of drugs among

youngsters spoiling their life, thus affecting the society as a whole.

Hence, the bail application is dismissed.

Sd/-

SHIRCY V JUDGE smm