Kerala High Court
Mubarak vs State Of Kerala on 27 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
BAIL APPL. NO. 3109 OF 2022
CRIME NO.1790 OF 2021 OF CHIRAYINKEEZHU POLICESTATION
PETITIONER/3RD ACCUSED:
NIYAS N
AGED 24 YEARS
KATTILVILA VEEDU,
NR DEESANTMUKKU, MUDAPURAM P.O., CHIRAYINKEEZHU ,
THIRUVANANTHAPURAM -, PIN - 695304
BY ADVS.
V.JOHN MANI
JACKSON JOHNY
VARGHESE SABU
SETHULAKSHMI K.K.
DIANA LAURANCE PAUL
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN -
682031
2 STATION HOUSE OFFICER
CHRIRAYINKEEZHU POLICE STATION,
ATTINGAL, THIRUVANANTHAPURAM -, PIN - 695304
BY PUBLIC PROSECUTOR SRI.M.C.ASHI
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.07.2022,
ALONG WITH Bail Appl..3778/2022 AND CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BA Nos.3109,3778 & 3790 of 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
BAIL APPL. NO. 3778 OF 2022
CRIME NO.1790 OF 2021 OF CHIRAYINKEEZHU POLICESTATION
PETITIONER/2ND ACCUSED:
SAJEEF MUNNA, AGED 28 YEARS, S/O ABDUL SALAM,
AKSHARAM VEEDU, NEAR NES BLOCK,
MUDAPURAM DESOM, KIZHUVILAM VILLAGE,
THIRUVANANTHAPURAM DISTRICT - 695304
BY ADVS.
M.KIRANLAL
SAMEER M NAIR
GEETHU KRISHNAN
HARSHA SUSAN SAM
MANU RAMACHANDRAN
T.S.SARATH
R.RAJESH (VARKALA)
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA - 682031
OTHER PRESENT:
SR.PP - SMT. SEETHA S.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.07.2022, ALONG WITH Bail Appl..3109/2022, 3790/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA Nos.3109,3778 & 3790 of 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
BAIL APPL. NO. 3790 OF 2022
CRIME NO.1790 OF 2021 OF CHIRAYINKEEZHU POLICESTATION
PETITIONER/1ST ACCUSED:
MUBARAK, AGED 29 YEARS, S/O BASHEER,
THOUFIK MANZIL, DECENTMUKKU,
MUDAPURAM DESOM, KOONTHALLOOR
VILLAGE,THIRUVANANTHAPURAM DISTRICT - 695304
BY ADVS.
M.KIRANLAL
R.RAJESH (VARKALA)
MANU RAMACHANDRAN
T.S.SARATH
SAMEER M NAIR
GEETHU KRISHNAN
HARSHA SUSAN SAM
SABIKH MOHAMMED V.S
V.M.VISHNU MOHAN
RESPONDENT/COMPLAINANT /STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA - 682031
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.07.2022, ALONG WITH Bail Appl..3778/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA Nos.3109,3778 & 3790 of 2022
4
VIJU ABRAHAM, J.
.................................................................
B.A.Nos.3109, 3778 & 3790 of 2022
.................................................................
Dated this the 27th day of July, 2022
ORDER
These are applications for regular bail.
2. B.A.No. 3790 of 2022 is filed by the 1st accused whereas
B.A.No.3778 of 2022 is filed by the 2nd accused and B.A.No.3109 of 2022
is filed by the 3rd accused in Crime No.1790 of 2021 Chirayinkeezhu
Police Station registered alleging commission of offences punishable
under Sections 22(b)(ii)(B), 22(c) & 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short, "NDPS Act").
3. Prosecution allegation is that on 24.09.2021 at about 16.50
hours, the accused persons were found in possession of 63.60 grams of
MDMA kept in the residence of 1st accused and 2.100kgs of ganja kept in
the Maruti Alto car bearing Registration No. KL-16-L-2419 parked in front
of the house.
B.A.Nos.3790 & 3778 of 2022
4. The case of the petitioners/accused Nos.1 and 2 is that the
house from which the alleged psychotropic substance and the narcotic
drug were seized does not belong to them. The said house, though taken
on rent was not occupied by the 1 st accused for the reason that his wife
BA Nos.3109,3778 & 3790 of 2022
was admitted in hospital for delivery. The petitioners have no knowledge
about the things which were alleged to have been seized from the said
house. The detecting officer has prepared the documents without any
bonafides and without any scientific proof held that the alleged substance
was MDMA. No detection kit was used to identify the suspected
substance. It is submitted that detention/arrest of a person cannot be
made solely relying on the assumptions of the police officer that too in a
case of such serious nature. So far forensic laboratory report has not
reached the Court which would attract the rigour of Section 37 of the
NDPS Act. Petitioners were arrested on 24.09.2021 and are under
detention since then. Further incarceration of the petitioners is not
necessary. Even though the petitioners had preferred applications for
regular bail before the Sessions Court, Thiruvananthapuram, the said
applications were dismissed. Charge sheet is already laid on 12.02.2022.
B.A. No.3109 of 2022
5. The case of the petitioner/3rd accused is that he is innocent
of the above allegations. The petitioner is not having any knowledge
about the alleged offences against him. It is alleged by the prosecution
that the contraband was seized from the house rented by the 1 st accused
and the alleged car involved in the above offence is owned by one
Ms.Kavitha Rajan. The petitioner is no connection with the above alleged
offences. The MDMA and ganja was seized from the possession of 1 st
BA Nos.3109,3778 & 3790 of 2022
accused. It is also submitted that the 1st accused is having animosity with
the petitioner and on the alleged date of incident, the 2 nd accused who is
having acquaintance with the petitioner asked him to settle the dispute
between the petitioner and 1st accused and requested him to accompany
him. Meanwhile the 2nd respondent came to the alleged place and
arrested the petitioner along with the other accused alleging that 1 st
accused is found in possession of MDMA and ganja. It is submitted that
the petitioner had no knowledge about the alleged possession of MDMA
by the accused. The 1st accused who is in inimical terms with the
petitioner, implicated the petitioner in the above crime. It is submitted that
there is absolutely nothing to connect the petitioner herein with the
recovery made from the other accused. The petitioner is innocent of the
offences alleged against him and he has been falsely implicated in this
case.
6. The main contention raised by the petitioners is that no
contraband was seized from their possession and therefore they are
entitled for bail. They further contend that the 4 th accused was granted
bail by this Court and further that Sessions Court, Thiruvananthapuram
has granted bail to accused Nos.5 and 6.
7. Learned Public Prosecutor seriously opposed the application
for bail mainly contending that on getting reliable information that narcotic
drugs are being kept for sale in a house by the name "Thoufiq Manzil"
BA Nos.3109,3778 & 3790 of 2022
and the said house was searched in the presence of witnesses, 5
persons were found in the hall of the house and they did not give reliable
replies and it was found that it was the first accused who was living there
on rent and thereafter on further questioning he intimated that MDMA is
kept in the drawer of an almirah inside the house and in the presence of
the Tahsildar, Chirayinkeezhu Taluk, who is a gazetted officer and other
witnesses, 63.60 grams of MDMA was seized from the drawer of the said
almirah and subsequently 2.100 kgs of ganja was seized from the car
parked in the front side of the said house. It is revealed in the
investigation that it is accused Nos.1 to 3 who went to Bangalore to
procure the contraband and that they have very active role in the
commission of offence.
8. The petitioners have taken a contention that no contraband
was recovered from their physical possession in as much as drugs were
seized from inside an almirah as well as a car. The learned Public
Prosecutor relied on the judgment of this Court in Sameer v. State of
Kerala, 2021 (5) KHC 338 in which also a similar contention was taken
that the petitioner therein is not responsible for the contraband articles
seized from the apartment as no contraband was seized from his
possession. This Court after considering the contentions raised entered a
finding that such contentions cannot be accepted while considering the
bail applications and that the contraband was seized from the house
BA Nos.3109,3778 & 3790 of 2022
taken on rent by the petitioner therein and that simply because there is
no seizure from the body of the petitioner he cannot escape from the
liability at this stage and further that the burden is on the petitioner to
establish that he was not in conscious possession of the contraband
articles and further that while considering the application for bail such
contentions cannot be decided.
9. I am in total agreement with the decision relied on by the
learned Public Prosecutor. It is pertinent to note that Annexure-A3 final
report produced by the petitioner in B.A.No.3778 of 2022 clearly reveals
that accused Nos.2, 3, 5 and 6 are involved in several other criminal
cases, the details of which are as follows.
2nd accused is involved in - (i) Crime No.569 of 2017
registered under Sections 447, 427, 506 & 34 of the Indian
Penal Code (in short, "IPC") and (ii) Crime No.1294 of 2014
registered under Sections 143, 147, 148, 149, 341, 323, 324
and 427 IPC, of Chirayinkeezhu Police Station; 3 rd accused is
involved in - (i) Crime No.569 of 2017 registered under
Sections 447, 427, 506 & 34 IPC and (ii) Crime No.1294 of
2014 registered under Sections 143, 147, 148, 149, 341, 323,
324 and 427 IPC, of Chirayinkeezhu Police Station; 5 th
accused is involved in Crime No.145 of 2019 registered
under Section 27 of the NDPS Act of Valiyathura Police
BA Nos.3109,3778 & 3790 of 2022
Station; and 6th accused is involved in - (i) Crime No.619 of
2018 registered under Section 20(b)(ii)A of the NDPS Act &
Section 77 of JJ Act of Kadinamkulam Police Station, (ii)
Crime No.2694 of 2019, (iii) Crime No.590 of 2019, (iv) Crime
No.1978 of 2019, (v) Crime No.45 of 2020 & (vi) Crime
No.197 of 2019, all are registered under Section 27(B), and
(vii) Crime No.657 of 2018 registered under Section 27(b)(ii),
of the NDPS Act of Kazhakkoottam Police Station.
The 4th accused was granted bail by this Court in BA No.1159 of 2022 on
a total different consideration of the facts and circumstances and
accused Nos.5 and 6 were granted bail by the Sessions Court,
Thiruvananthapuram as per Annexure-A5 order produced in B.A.No.
3109 of 2022 mainly relying on the order in B.A.No.1159 of 2022 and that
the Prosecutor did not oppose the application for bail. In the present case
the applications for bail is seriously opposed by the prosecution and
contended that there is specific role for the petitioners herein in the
commission of the alleged offence.
Since the quantity involved is of a commercial one, the rigor
of Section 37 of the NDPS Act will come into play. Petitioners could not
substantiate by cogent reasons that the twin conditions in Section 37 of
the NDPS Act are satisfied so as to grant bail. All the bail applications are
accordingly dismissed.
BA Nos.3109,3778 & 3790 of 2022
Taking into consideration the fact that the final report is
already filed after investigation and the fact that petitioners are in custody
for a long, there will be a direction to the trial court to expedite the trial.
It is made clear that these prima facie observations are
made for the limited purpose of deciding this bail application and the
above opinion expressed shall not be regarded as opinion on merits,
during trial.
Sd/-
VIJU ABRAHAM
JUDGE
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