Kerala High Court
Bunash Khan vs State Of Kerala on 3 June, 2021
BAIL APPL. NO. 2573 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 3RD DAY OF JUNE 2021 / 13TH JYAISHTA, 1943
BAIL APPL. NO. 2573 OF 2021
CRIME NO.90/2021 OF VALLIKUNNAM POLICE STATION
PETITIONER/ACCUSED:
BUNASH KHAN
0
AGED 27 YEARS
BISMINA MANZIL, PALLICKAL P.O MANJADITHARA MURI,
BHARANIKAVU VILLAGE, ALAPPUZHA
ALAPPUZHA, PIN - 690503
BY ADVS.
OMAR SALIM
SRI.ABDULLA ZIYAD
SHRI.SRAVAN M.S.
SHRI.ARUN T.
KUM. K. REMIYA RAMACHANDRAN
RESPONDENT/S:
STATE OF KERALA
0
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
SRI AJITH MURALI-PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 2573 OF 2021 2
ORDER
This application under Section 438 of the Cr.P.C is filed by the accused in
Crime No.90/2021 of the Vallikunnam Police Station. The aforesaid crime was
registered on 02.02.2021 under Section 20(b)(ii)C of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
2. On 02.02.2021, during the early hours of the day, the Inspector of
Police, Vallikunnam Police Station along with his party were engaged in routine
checking of vehicles along the Kayamkulam-Punaloor road. A car bearing
registration No.KL-29-R-111 was driven off without heeding to the directives of
the police to stop the vehicle for inspection. The police followed the car and it
appears that the car dashed on to a wall near a fuel pump and came to a stand
still. The person who was inside the car took to his heels and made good his
escape. The car was inspected and it was found that three sacks of ganja
weighing 15.330 kg, 17.418 kg and 17.544 kg were kept concealed inside.
Various records were found inside the vehicle and those were also seized. The
accused was identified and the crime was registered.
3. The learned counsel appearing for the petitioner submitted that the
petitioner has been falsely implicated in the instant crime. Though in the bail
application, the petitioner admits that the vehicle which met with the accident
and from which about 50 kgs of Ganja was seized belonged to him, he denies
that the said vehicle was used for the transportation of ganja. The petitioner
asserts that he had met with an accident sometime in the year 2014 and had to
undergo treatment at the Medical Trust Hospital, Kochi. Referring to
Annexure- A3 medical records and discharge summary, which are all of the year
2014 and 2015, it is submitted that the condition of his left leg is such that he
would not be in a position to run. Relying on these records, it is vehemently
contended that the entire prosecution case will fall to the ground as according
to the police, the driver of the car had fled immediately after the incident.
Reliance is also placed on Annexure-A4 certificate issued by the consultant
Orthopedic surgeon in the year 2021 advising that the petitioner will not be able
to do work that requires standing or walking for long periods. It appears that
the said certificate was procured after the incident in the instant case. The
learned counsel would also refer to Annexure-A5 order passed by the Human
Rights Commission and Annexure-A7 order passed by the Minorities Commission
on 17.12.2014 and 19.10.2020 to bring home his point that the complaint
lodged by the petitioner's mother alleging false implication of the petitioner in
various cases were ordered to be investigated by a superior officer. According
to the learned counsel, the allegations levelled against the petitioner are false
and frivolous.
4. Sri.Ajith Murali, the learned Public Prosecutor has opposed the prayer.
He would contend that cogent and convincing materials have been collected by
the police to connect the petitioner with the crime. According to the learned
Public Prosecutor, the petitioner is a hardened criminal and he is the accused in
as many as 17 cases within the limits of Kollam and Alappuzha districts which
include 2 crimes registered under the NDPS Act as well. He would contend that
the identity of the petitioner is well known in the area and he was duly identified
by the police on the date of incident itself. It is submitted that the medical
records produced by the petitioner are of the year 2014 and it relates to a
fracture sustained by him on the left leg. According to the learned Public
Prosecutor, those records are thoroughly insufficient to conclude that the
petitioner now has any locomotor disability or that he will not be in a position to
make good his escape. The details of crimes registered in the year 2013 and
thereafter are also highlighted to bring home the point that the contentions so
advanced by the petitioner has no basis. It is further submitted that the
petitioner's mother used to file complaints before various forums alleging
highhandedness of the police and those complaints have all been considered by
the superior police officers and it was found that the allegations raised are
without basis. It is further submitted that the quantity of contraband seized
from the vehicle of the petitioner falls within the category of commercial
quantity and the investigation is in the early stages. According to the learned
Public Prosecutor, unless the applicant satisfies the twin parameters laid down
under Section 37 of the Act, he cannot be enlarged on bail at this stage. It is
urged that unless there are reasonable grounds for believing that the accused is
not guilty of the offence and that he is not likely to commit any offence while on
bail, the applicant cannot be released on bail. Much reliance is placed on the
decision of the Apex Court in Union of India (UOI) v. Shri Shiv Shanker
Kesari [(2007) 7 SCC 798] to support his contentions. Reliance is also
placed on a judgment of this Court in Shaji P A v. State of Kerala [2018(3)
KLT 164] and it was argued that the restrictions provided in Section 37 of the
Act in granting bail to a person accused of the offences specified therein would
also apply in granting anticipatory bail under Section 438 of the Code.
5. I have considered the submissions advanced and have gone through
the materials made available.
6. The jurisdiction of the court to grant bail is circumscribed by the
provisions of Section 37 of the NDPS Act. It reads thus:
"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."
7. Bail can be granted in a case, where 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. It is manifest that the conditions are
cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of
the Act is "reasonable grounds", which means something more than prima facie
grounds. It connotes substantial probable causes for believing that the accused
is 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 is not guilty of
the offence charged. 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 accused is 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 is not likely to commit any
offence and there should also exist some materials to come to such a
conclusion.
8. The Apex Court has laid down broad parameters to be followed while
considering the application for bail moved by the accused involved in the
offences under the NDPS Act. In Union of India v. Ram Samujh [(1999) 9
SCC 429], the principles have been laid down in unequivocal terms:
"7. It is to be borne in mind that the aforesaid legislative
mandate is required to be adhered to and followed. It should be
borne in mind that in a murder case, the accused commits
murder of one or two persons, while those persons who are
dealing in narcotic drugs are instrumental in causing death or in
inflicting death-blow to a number of innocent young victims, who
are vulnerable; it causes deleterious effects and a deadly impact
on the society; they are a hazard to the society; even if they are
released temporarily, in all probability, they would continue their
nefarious activities of trafficking and/or dealing in intoxicants
clandestinely. Reason may be large stake and illegal profit
involved.
9. The scheme of Section 37 reveals that the exercise of power to grant bail
is not only subject to the limitations contained under Section 439 CrPC, but is
also subject to the limitation placed by Section 37 which commences with a non
obstante clause. The operative part of the said section is in the negative form
prescribing the enlargement of bail to any person accused of commission of an
offence under the Act, unless twin conditions are satisfied. The first condition is
that the prosecution must be given an opportunity to oppose the application;
and the second, is that the court must be satisfied that there are reasonable
grounds for believing that he is not guilty of such offence. If either of these two
conditions is not satisfied, the ban for granting bail operates. (See State of
Kerala and others v Rajesh and others [(2020) 12 SCC 122].
10. In Durand Didier v. State (UT of Goa) [(1990) 1 SCC 95], while
speaking about the menace of Drugs , the Apex Court had observed thus:
'24. With deep concern, we may point out that the organised
activities of the underworld and the clandestine smuggling of
narcotic drugs and psychotropic substances into this country and
illegal trafficking in such drugs and substances have led to drug
addiction among a sizeable section of the public, particularly the
adolescents and students of both sexes and the menace has
assumed serious and alarming proportions in the recent years.
Therefore, in order to effectively control and eradicate this
proliferating and booming devastating menace, causing deleterious
effects and deadly impact on the society as a whole, Parliament in
its wisdom, has made effective provisions by introducing this Act 81
of 1985 specifying mandatory minimum imprisonment and fine.'
11. In the case on hand, the available records would reveal that about 50
kg of ganja was seized from the car which is admittedly owned by the
petitioner. In his bail application he asserts that he is quite unaware of what
was loaded in the trunk of the vehicle and it is also contended that he was not
in conscious possession of the contraband. He also asserts that though the
vehicle belongs to him, he was nowhere in the scene of occurrence.
12. The main contention of the petitioner is that he is a disabled person
and he is not capable of running due to the injury sustained by the petitioner in
the year 2014. None of the medical records produced before this Court would
enable this Court to come to such a conclusion. It appears that the petitioner
has procured various certificates from doctors for the purpose of producing it
before various authorities. Admittedly, the petitioner is a business man and it
fails comprehension as to why he would procure a certificate to produce it
before a non existent employer. Furthermore, the records of crimes in which he
is involved makes astonishing reading. The same is extracted below for
convenience.
Sl
Police Station and Crime No. Offence
No.
u/ss.143, 147, 148, 323, 324,
Kayamkulam Police Station Cr.No.1793/2015 308 and 506(i) r/w Sec.149 of
lpC.
Kayamkulam Police Station Cr.No.385/2017,
u/s.27 of the NDPS Act
2.
Kayamkulam Police Station Cr.No.623/2010, u/s.379 red with Sec.34 of lPC
3.
Kayamkulam Police Station Cr.No.618/2020 u/s.379 red with Sec.34 of lPC
4.
u/s.365 and 368 read with
Nooranadu Police Station Cr.No.221/2013
5. Sec.34 of lPC
Nooranadu Police Station Cr.No.894/2013 u/s.420 read with Sec.34 of lPC
6.
u/s.364A read with Sec.34 of
Nooranadu Police Station Cr.No.946/2013
7. lPC
u/ss. 143, 147, 148, 452, 324,
506(ii) and 109 read with
Kurathikadu Police Station Crime No.465/2013
8. Sec.149 of lPC and u/s.27 of
the Arms Act.
Kurathikadu Police Station Crime No.884/2016 u/s.394 read with Sec.34 of lPC
9.
u/ss.143, 147, 294(b), 323, 341
Kurathikadu Police Station Crime
and 506(i) read with Sec.149 of
10. No.1693/2017
lPC
Karunagappally Police Station Crime
u/s 420 IPC
11. No.1270/2015
Ernakulam South Police Station Crime
u/s 461, 380 and 457 IPC
12. No.108/2017
u/ss 395 and 506(ii) read with
Vallikunnam Police Station Crime
Sec.34 IPC and u/s 27 of Arms
13. No.160/2013
Act
Vallikunnam Police Station Crime
u/s 511 of 394 r/w Sec.34 IPC
14. No.863/2013
Vallikunnam Police Station Crime
u/s 20(b) (II) B of NDPS Act.
15. No.1286/2018
Mavelikara Police Station Crime No. u/ss.120(B), 130, 216, 225(B) of
16. 2261/2019 IPC
u/s.379, 411 and 201 read with
Aran mula Police Station Crime No.608/2010
17 Sec.34 of IPC
From the details of the crimes it is apparent that numerous crimes were
registered after 2014 and this would contradict the case of the petitioner that he
is more or less immobile and disabled after 2014.
13. It is true that the mother of the petitioner had filed certain complaints
before the Human Rights Commission as well as the Minority Commission. As
rightly submitted by the learned Public Prosecutor, the lodging of complaints
stating one reason or the other appears to be the modus operandi adopted by
the petitioner and his mother to keep the police at arm's length.
14. In Dr. Naresh Kumar Mangala v Anita Agarwal and Others
[2020 SCC Online SC 1031], the Apex Court had occasion to reiterate the
principles that are to be borne in mind while considering an application for
anticipatory bail. It was observed as follows :
17. The facts which must be borne in mind while considering an
application for the grant of anticipatory bail have been elucidated in
the decision of this Court in Siddharam Satlingappa Mhetre v. State
of Maharashtra8 and several other decisions. The factors to be
considered include:
"112. [...]
(i) the nature and gravity of the accusation and the exact role of
the accused;
(ii) the antecedents of the applicant including whether the accused
has previously undergone imprisonment on a conviction by a
court in respect of a cognizable offence;
(iii) the possibility of the applicant fleeing from justice;
(iv) the likelihood of the accused repeating similar or other
offences;
(v) whether the accusations have been made only with the object
of injuring or humiliating the applicant by arresting them;
(vi) the impact of the grant of anticipatory bail particularly in cases
of magnitude affecting a large number of people;
(vii) The court must carefully evaluate the entire material against
the accused. The court must also clearly comprehend the exact
role of the accused in the case. Cases in which the accused is
implicated with the help of Sections 34 and 149 of the Penal
Code, 1860 the court should be considered with even greater
care and caution because over implication in such cases is a
matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors, namely, no
prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
(ix) the reasonable apprehension of tampering of the witnesses or
apprehension of threat to the complainant;
(x) frivolity in prosecution should always be considered and it is
only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail.
113. Arrest should be the last option and it should be restricted to
those exceptional cases where arresting the accused is
imperative in the facts and circumstances of that case. The
court must carefully examine the entire available record and
particularly the allegations which have been directly attributed
to the accused and these allegations are corroborated by other
material and circumstances on record."
18. Adverting to the above observations, in Jai Prakash Singh v.
State of Bihar9, this Court held:
"19. Parameters for grant of anticipatory bail in a serious
offence are required to be satisfied and further while granting
such relief, the court must record the reasons... Anticipatory
bail can be granted only in exceptional circumstances where
the court is prima facie of the view that the applicant has
falsely been roped in the crime and would not misuse his
liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [(2007) 4
SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd.
S. Husain [(2008) 1 SCC 213 and Union of India v. Padam
Narain Aggarwal [(2008) 13 SCC 305) "
19. In the recent decision of the Constitution Bench in Sushila
Aggarwal v. State (NCT of Delhi),10 the considerations which ought
to weigh with the Court in deciding an application for the grant of
anticipatory bail have been reiterated. The final conclusions of the
Court indicate that:
"92.1... The application seeking anticipatory bail should contain
bare essential facts relating to the offence, and why the
applicant reasonably apprehends arrest, as well as his side of
the story. These are essential for the court which should
consider his application, to evaluate the threat or apprehension,
its gravity or seriousness and the appropriateness of any
condition that may have to be imposed.
92.3...While considering an application (for grant of anticipatory
bail) the court has to consider the nature of the offence, the
role of the person, the likelihood of his influencing the course of
investigation, or tampering with evidence (including intimidating
witnesses), likelihood of fleeing justice (such as leaving the
country), etc.
92.4. Courts ought to be generally guided by considerations such
as the nature and gravity of the offences, the role attributed to
the applicant, and the facts of the case, while considering
whether to grant anticipatory bail, or refuse it. Whether to grant
or not is a matter of discretion; equally whether and if so, what
kind of special conditions are to be imposed (or not imposed)
are dependent on facts of the case, and subject to the
discretion of the court."
15. Having carefully considered the materials which are made available, I
am of the prima facie view that there are credible materials linking the
petitioner with the crime. There are no substantial probable causes for believing
the version of the petitioner at this stage. I hold that the petitioner has 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 he is not guilty of
the offence charged. Moreover, the investigation is at a preliminary stage and I
find no reason to arm the petitioner with an order of anticipatory bail.
This application will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps/3/6/2021
