Kerala High Court
Fijo vs State Of Kerala on 27 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943
BAIL APPL. NO. 8835 OF 2021
(CRIME NO.705 OF 2021 OF KORATTY POLICE STATION, THRISSUR)
PETITIONER/3RD ACCUSED
FIJO
AGED 35 YEARS
PULLAN HOUSE,
KORATTY SOCIETY NAGAR DESOM, MURINGOOR,
THEKKUMMURI VILLAGE, CHALAKUDY THALUK,
THRISSUR DISTRICT PIN : 680 309, PIN - 680309
BY ADVS.
PRABHU K.N.
MANUMON A.
JAYAN KUTTICHAKKU
RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
BY PUBLIC PROSECUTOR SRI.P.G. MANU
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
18.01.2022, THE COURT ON 27.01.2022 DELIVERED THE FOLLOWING:
BAIL APPL. NO. 8835 OF 2021 2
ORDER
Dated this the 27th day of January, 2022
The petitioner, who is arraigned as the 3rd accused in
Crime No. 705 of 2021 registered for the offences punishable
under Sections 20(b)(ii) C, 25, 27A and 29 of the Narcotic
Drugs and Psychotropic Substances Act (for short 'NDPS Act')
read with Section 120B of the Indian Penal Code, has moved
this application seeking bail under Section 439 of the Code of
Criminal Procedure.
2. The petitioner has been in custody since 13.08.2021.
The prosecution case is that on 12.08.2021 at about
10.45 a.m., accused Nos. 1 and 2 were found transporting
20.845 kgs. of ganja in a Mahindra Bolero pickup bearing
Registration No. KL-39-G-4860 through the public road near
Muringoor Chackola Marys Tile Works. They were
apprehended by the 1st respondent and on investigation it was
revealed that accused Nos. 3 and 4 had financed them to
procure and transport the ganja and thereby accused Nos. 1
and 2 were apprehended by the police and accused Nos. 3 and
4 were arrested on the next day.
3. The learned counsel for the petitioner has raised a
plea of false implication and contended that he is totally
innocent of the allegations levelled against him. In fact
nothing has been seized from his possession. Of-course there
is an allegation that he had financed to purchase and transport
ganja along with the 4th accused, as confessed by accused
Nos. 1 and 2, but, in fact, this petitioner is having some
business transaction with accused No.2. The amount of
Rs.5,000/- alleged to have been transferred by this petitioner
to the account of the 2 nd accused was not for the alleged
purchase of ganja as stated by the prosecution, but it was in
connection with their joint diary farm business. So, he seeks
for his release on bail.
4. On the other hand, the learned Public Prosecutor
vehemently opposed the application and contended that the
allegations raised against this petitioner are absolutely correct
and reliable and actually the detection of the contraband was
on the basis of a credible secret information received by the
Sub Inspector of Koratty Police Station and on the basis of the
information, after complying with the formalities he had
intercepted the vehicle and seized the ganja from the
possession of accused Nos. 1 and 2. On recording the
statement, the involvement of this petitioner as well accused
No.4 were revealed and thus they were apprehended on the
next day.
5. It is true that no contraband was seized from the
possession of this petitioner. But on the basis of the
statement given by accused Nos. 1 and 2, this petitioner was
also apprehended. On investigation it was revealed that this
petitioner along with the other accused stayed together in a
lodge by name 'Sreekrishna Bhavan' in Uduppi so as to
procure the contraband and the tower location and the call
details of their mobile phones collected by the investigating
agency would reveal that this petitioner along with the other
accused have collected the contraband, for illegal sale. When
he advanced money to collect it, his role in the illegal
transaction is prima facie evident.
6. In the first bail application itself this court has found
that this petitioner was not having any business transaction
other than, the dealings with the narcotic items, so as to infer
that the amount was transferred by him to the account of the
2nd accused as asserted by him. The documents produced by
him so as to appear that they were having some business in
respect of a diary farm was found as forged documents
created for the purpose of this case. In fact, prima facie it
appears that the business transaction was only for procuring
ganja.
7. Moreover, the investigating agency has to gather
evidence as it was revealed from the materials so far collected
that this petitioner had also joined accused Nos. 1 and 2 in
Andhra Pradesh by taking up a journey by flight, while accused
Nos. 1 and 2 proceeded to the spot with the vehicle involved in
this case to procure the contraband. So, the investigating
agency has to collect his travel details also for the purpose of
the investigation of the case.
8. Here commercial quantity of contraband is involved in
this case. Granting of bail in a case where commercial
quantity of narcotic drugs is involved is circumscribed by the
provisions of Section 37 of the NDPS Act. Interpreting the
word 'reasonable grounds' in Section 37 of the NDPS Act
the Apex Court in Union of India v. Shiv Shanker
Kesari [(2007) 7 SCC 798] has held as follows:
"7. The expression used in Section 37(1)(b)(ii) is
"reasonable grounds". The expression 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.
8. The word "reasonable" has in law the prima facie
meaning of reasonable in regard to those circumstances of
which the actor, called on to act reasonably, knows or ought to
know. It is difficult to give an exact definition of the word
"reasonable".
"9. ... It is often said that 'an attempt to give a specific
meaning to the word "reasonable" is trying to count what is not
number and measure what is not space.' The author of Words
and Phrases has quoted from Nice & Schreiber, In re to give a
plausible meaning for the said word. He says
'the expression "reasonable" is a relative term, and the facts of
the particular controversy must be considered before the
question as to what constitutes reasonable can be determined.'
It is not meant to be expedient or convenient but certainly
something more than that."
10. The word "reasonable" signifies "in accordance with
reason". In the ultimate analysis it is a question of fact, whether
a particular act is reasonable or not depends on the
circumstances in a given situation. (See Municipal Corpn of
Greater Mumbai v. Kamla Mills Ltd)
11. The 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 accused is not guilty and records
its satisfaction about the existence of such grounds. But the
court has not to consider the matter as if it is pronouncing a
judgment of acquittal and recording a finding of not guilty."
[See the decision reported in State of Kerala v. Rajesh
(2020(1) KHC 557)].
9. Apart from that as observed in the earlier order, this
petitioner is involved in 20 other criminal cases registered
before various police stations. So he is a history-sheeter. Now
the investigation of the case is not over. Taking into account of
the aforementioned reasons and the nature and seriousness of
offence, I find that this petitioner is not entitled to be released
on bail, though no contraband has been seized from his
possession as projected by the learned counsel for the
petitioner.
Dismissed.
Sd/-
SHIRCY V
JUDGE
sb
