Kerala High Court
Anfas Sidhique vs State Of Kerala on 22 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
BAIL APPL. NO. 8569 OF 2021
AGAINST THE ORDER/JUDGMENTCRMC 2226/2021 OF II ADDITIONAL DISTRICT
COURT,ERNAKULAM
CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/9TH ACCUSED:
ANFAS SIDHIQUE,AGED 22 YEARS
S/O. SIDHIQUE, PUTHUKKADAN HOUSE,
VENGOLA, KUNNATHU NADU TALUK,
ERNAKULAM DISTRICT, 683 556.
BY ADVS.
RAJEE P MATHEWS
AMRUTHA P S
P.VIJAYA BHANU (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, 682 031
BY PP SRI M.C.ASHI
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.09.2022,
ALONG WITH Bail Appl..4581/2022 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
BAIL APPL. NO. 479 OF 2022
CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/ACCUSED NO.7:
SIFAN THAJ,AGED 22 YEARS,S/O THAJUDHEEN,
THURUTHIKATTU KUNNUPARAMBIL HOUSE,
CHALAKKAPPARA DESOM, KULAYATTIKKARA P.O.
AMBALLOOR, ERNAKULAM DISTRICT, PIN-683 315
BY ADV NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN-682 031
BY PP SRI.M.C.ASHI
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.09.2022, ALONG WITH Bail Appl..4581/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
BAIL APPL. NO. 884 OF 2022
CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/ACCUSED NO.8:
DHEEPESH,AGED 24 YEARS
RESIDING AT DOWDEL HOUSE, KARAPPARAMBU
VENGERI VILLAGE, KOZHIKODE TALUK
KARUVASSERY (PO), KOZHIKODE
PIN - 673010
BY ADVS.
P.V.ANOOP
PHIJO PRADEESH PHILIP
M.P.PRIYESHKUMAR
K.V.SREERAJ
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031
2 ASSISTANT COMMISSIONER, EXCISE CRIME BRANCH,
ERNAKULAM PIN - 682031
BY SR.PP SRI.C.K.SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.09.2022, ALONG WITH Bail Appl..4581/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
BAIL APPL. NO. 991 OF 2022
CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/ACCUSED NO.14:
SANEESH T S, AGED 24 YEARS, S/O.SANTHOSH,
THEVARUPARAMBIL HOUSE, VALLIVATTOM P O
THRISSUR DISTRICT, PIN - 680123
BY ADVS.
V.JOHN SEBASTIAN RALPH
VISHNU CHANDRAN
RALPH RETI JOHN
APPU BABU
SHIFNA MUHAMMED SHUKKUR
ANILA T.THOMAS
ALBIN ANTO
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
BY SR.PP SRI.C.K.SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.09.2022, ALONG WITH Bail Appl..4581/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
BAIL APPL. NO. 4581 OF 2022
CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/ACCUSED NO.21:
MUHAMMED SAHAD,AGED 25 YEARS
MUSTHIKUND HOUSE, MULIYAR MULIYAR P O
KASARAGOD, PIN - 671542
BY ADV SAIJO HASSAN
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY SR.PP SRI.C.K.SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.09.2022, ALONG WITH Bail Appl..479/2022, 884/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
BAIL APPL. NO. 4891 OF 2022
AGAINST THE ORDER/JUDGMENTSC 378/2021 OF DISTRICT COURT & SESSIONS
COURT, ERNAKULAM
CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/12TH ACCUSED:
SMT.SUSMITHA PHILIP,AGED 40 YEARS
D/O.C.G.PHILIP, CHOLAKATH HOUSE,
ARAKKEARAMBU ROAD, COCHIN-682002.
RP NO. 83/2021, VANITHA JAIL, VIYYUR,
THRISSUR.
BY ADV P.V.ANIL
RESPONDENT:
THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM - 682031
BY SR.PP SRI.C.K.SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.09.2022, ALONG WITH Bail Appl..4581/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 22ND DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944
BAIL APPL. NO. 6018 OF 2022
CRIME NO.36/2021 OF EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/ACCUSED NO.15:
MASHOOD,AGED 28 YEARS,S/O HAMSAKOYA
C.V HOUSE,KAIKKOTTUMPADAM PARAMB
OLAVANNA VILLAGE,KOZHIKODE, PIN - 673019
BY ADVS.
FRANCIS ASSISI
AJEESH S.BRITE
STEPHY JOSEPH
ANVARSHA SHAMSU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY SR.PP SRI.C.K.SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.09.2022, ALONG WITH Bail Appl..4581/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
8
VIJU ABRAHAM, J.
.................................................................
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
.................................................................
Dated this the 22nd day of September, 2022
ORDER
These are all regular bail applications arising out of the same
crime and therefore they are heard and disposed of together.
2. Petitioners are accused Nos. 9, 7, 8, 14, 21, 12 and 15 in Crime
No. 36/2021 of Ernakulam Excise Range registered alleging commission of
offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drug
and Psychotropi Substances Act, 1985 (in short, "NDPS Act"). The
prosecution allegation is that on 19.08.2021 at about 1.40 a.m., the Excise
Enforcement and Anti Narcotic Special Squad, Ernakulam acting on a tip-off
conducted a search in Marhaba Apartment, Vazhakala, and seized 83.896
grams of MDMA illegally kept for sale in an apartment in the 1st floor of C
block and arrested accused Nos. 1 to 5.
3. The case of the petitioner in B.A. No. 8569/2021 who is the 9th
accused in the above-said crime is that he has absolutely no connection with
the above-said crime. It is also submitted that even going by the prosecution
case, the petitioner was not found in possession of any contraband articles or
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
transported or transmitted the same. Other than with the 3rd accused, the
petitioner does not have any acquaintance with any of the other accused. An
amount of Rs. 2 Lakhs was transferred to the account of the 3rd accused by
the petitioner in connection with the purchase of a used car for the petitioner.
Petitioner is in custody from 22.09.2021 and that the charge sheet is already
laid. Petitioner has no other criminal antecedents. Though he moved an
application before the Sessions Court, the same was rejected as per
Annexure B order.
4. The case of the petitioner in B.A. No. 479/2022 who is the 7th
accused in the above-said crime is that he has been falsely implicated in the
above-said crime. Petitioner has never conspired and aided in the
commission of the offence and the only allegation against the petitioner is
that he has provided financial assistance to procure the contraband and also
aided in the commission of the offence. Petitioner got acquainted with the 1st
accused who was in possession of a Rot Wheeler dog and had business in
the sale of dogs and the petitioner has only acted as an agent for the sale of
dogs through the 1st accused. Petitioner has also financially helped the 1st
and 5th accused at the time of their marriage. Petitioner is implicated only on
the basis of the confession statement of the co-accused which is inadmissible
as per the judgment in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
1. Petitioner further relies on the judgment in State by (NCB) Bengaluru v.
Pallulabid Ahmad Arimutta and Others, 2022 SCC OnLine SC 47, to
contend for the position that bail cannot be denied when the allegation
against the accused is only based on financing, call records and confession.
The petitioner also relies on the order in B.A. No.79/2022 wherein the
accused in another case was granted bail by this court, in a similar
circumstance. Petitioner submits that he is in custody from 14.9.2021.
5. The case of the petitioner in B.A. No.884/2022 who is the 8th
accused in the above-said crime is that he has absolutely no connection with
the alleged crime and that he has been arrayed as an accused only based on
bank transactions with other accused persons and such transactions
happened in connection with selling and purchase of second-hand vehicles
which is the business of the petitioner. It is further submitted that some of the
friends of the petitioner who have no bank account have also used his bank
account facility. No contraband was seized from the petitioner. Though the
petitioner moved an application for bail, the same was rejected as per
Annexure A order by the Sessions Court. Petitioner submits that he is in
custody from 20.9.2021.
6. The case of the petitioner in B.A. No. 991/2022 who is the 14th
accused in the above-said crime is that he has absolutely no connection with
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
the alleged crime and that he has been arrayed as an accused only on the
basis of call data details and that he has some financial transaction with the
other accused. Petitioner is arrested on 21.10.2021. Application for bail
moved before this court was rejected as per Annexure A1 and by the
Sessions Court on three occasions as is evidenced from Annexure A2 to 4
orders.
7. The case of the petitioner in B.A. No. 4581/2022 who is the 21st
accused in the above-said crime is that he has absolutely no connection with
the alleged crime and that he has been arrayed as an accused only on the
basis of some alleged financial transaction and further that the petitioner is in
custody from 24.11.2021. An earlier application for bail filed before the
Sessions Court was rejected by Annexure 1 order.
8. The case of the petitioner in B.A. No. 4891/2022 who is the 12th
accused in the above-said crime is that she has absolutely no connection
with the alleged crime. The specific case of the petitioner is that there is not
even a single financial transaction between A1 to A11 and the petitioner.
Petitioner is in custody from 30.09.2021. The statement of A1 to A5, A8, A9,
A10, and A13 does not reveal any role of the petitioner in the alleged crime.
The petitioner is a tuition teacher by profession. Though she moved an
application for bail before this court, the same was rejected as per Annexure
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
A51 order.
9. The case of the petitioner in BA. No. 6018/2022 who is the 15th
accused in the above-said crime is that the petitioner is totally innocent of the
charges levelled against him. The only allegation against him is that he has
transferred an amount of Rs. 6000/- to the 1st accused. Petitioner's brother
is running a textile shop and petitioner is working in that shop. The 1st
accused, who is his neighbour, offered to supply dress materials to the shop
run by the petitioner's brother, and therefore the amount was transferred.
Further case of the petitioner is that even though the contraband was
originally considered to be MDMA, in the chemical analysis report it was
found to be methamphetamine hydrochloride. Further case of the petitioner is
that the contraband seized from various places is clubbed together to make it
a commercial quantity and further that sample was taken after mixing the
contraband, which is against Standing Orders issued in this regard.
10. The learned Senior Public Prosecutor seriously opposed the
application for bail mainly contending that the investigation revealed that all
the petitioners are actively involved in the alleged crime and further that a
huge quantity of contraband which is of commercial quantity is seized. It is
further submitted that the modus operandi employed by the accused was to
travel in high-end vehicles along with women and ferocious dogs so as to
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
escape from the attention of the law enforcement agencies. Earlier
applications filed by the 12th accused and the 14th accused were dismissed
by this Court in B.A. No. 9306/2021 and B.A. No. 9496/2021. The
investigation revealed that the kingpin behind the alleged crime is the 1st
accused who is involved in another NDPS crime, which is now pending trial.
The CDR details reveal that all the accused were in constant contact with
each other during the relevant point in time.
11. As per the prosecution allegation, the 7th accused funded the
1st accused for procurement of the contraband and investigation revealed
that there were monetary transactions between them and also had constant
telephonic contacts with the 1st accused and other accused and also
obtained contraband from the 1st accused and was actively involved in the
sale of the contraband mainly by organizing drug parties, etc. The 7th
accused was in constant contact with the 1st accused and there were huge
monetary transactions from the account of the 1st accused and that he has
funded for procurement of the contraband and also involved in the sale of the
contraband and as per the direction of the 1st accused, amounts were
transferred in connection with the alleged crime. Call records also reveal that
he was in constant contact with many of the accused involved in the alleged
crime. The investigation also revealed that the 8th accused had several
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
monetary transactions through bank with the 1st accused and the
investigation further revealed that these amounts were transferred for the
purchase of contraband and he has funded the 1st accused for procurement
of the contraband. It is also revealed in the investigation that he was in
constant contact with many of the accused over the phone. The allegation
against the 9th accused is that he was also in contact with the 1st accused
and he has procured contraband from the 4th accused for the purpose of sale
and amounts were transferred to the account suggested by the 4th accused
and was part of the conspiracy and was involved in organizing drug parties.
Call records reveal that he was in constant contact with many of the accused
especially the 4th accused. The investigation also reveals that the amount
given by the 4th accused is deposited in the account of the 9th accused and
the same was transferred to other accounts as per the direction of the 4th
accused. The allegation against the 12th accused is that she along with A1 to
A6 organized drug parties for the sale of the contraband and was also
actively involved in the conspiracy. The WhatsApp chat details also reveal
that the 12th accused was in contact with the other accused. Investigation
also revealed that she was in constat contact with many of the accused over
phone. The learned prosecutor further contended that the investigation also
revealed that the 12th accused provided facility to keep the two ferocious
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
dogs used for the alleged crime and also arranged legal help to accused nos.
1 to 5. The allegation against the 14th accused is that he was actively
involved in the conspiracy and has organized drug parties along with the 1st
and other accused. He was actively involved in the retail sale of the
contraband and has also transferred amounts from the sale proceeds to the
account of the other accused. Investigation revealed that accused no. 14 had
account transfers with other accused i.e., 1st, 4th, 11th, and 21st accused.
The call records also reveal that he had constant contact with many of the
accused involved in the present crime. The allegation against the 21st
accused is that he is actively involved in the retail sale of the contraband and
also involved in the conspiracy and had monetary transactions with 7th, 9th,
11th, and 14th accused and also had telephonic contacts with many of the
accused. As regards accused no. 15, the prosecution case is that he was in
constant contact with the 1st accused and has also funded the transaction
and had also transferred amounts to various accounts as directed by the 1st
accused. The call records also show that he was in constant contact with
most of the accused and the bank account details show that there were also
monetary transactions with other accused persons. The learned public
prosecutor further submitted that other than the confession statement there
are sufficient materials to connect the petitioners with the alleged crime and
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
therefore the decisions relied on by the petitioners are not applicable in the
facts and circumstances of the case. As regards the reliance placed by the
petitioner in the order in BA No. 79/2022, it is contended that it is an order
passed in respect of a totally different case.
12. One of the main contention taken by the petitioners in all these
cases is that samples were taken in total violation of the provisions of
Standing Order No. 1/89 and therefore it vitiates the case of the prosecution
and therefore they are entitled to bail. The petitioners rely on the judgment of
the Delhi High Court in Amani Fidel Chris v. Narcotics Control Bureau,
2020 SCC OnLine Del 2080; Noor Aga v. State of Punjab, (2008) 16 SCC
417; Union of India v. Mohanlal, (2016) 3 SCC 379; Gaunter Edwin
Kircher v. State of Goa, (1993) 3 SCC 145 and also orders passed by the
Madhya Pradesh High Court in MCRC No. 19405/2022, Telangana High
Court in Crl. Pet. No. 4428/2022, Delhi High Court in B.A. No. 3076/2020,
Allahabad High Court in Crl. Misc. B. A. No. 18303/2020 to contend for the
position that they are entitled to bail when sampling was done in violation of
the Standing Orders issued in this regard. It is also contended that the
decision in Amani Fidel Chris's case supra was confirmed by the Apex
Court in SLP (Crl) No. 5088/2020.
13. Per contra, learned Senior Public Prosecutor relied on the
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
judgment of the Apex Court in Sumit Tomar v. State of Punjab, (2013) 1
SCC 395; Supdt., NCB Chennai, v. R. Paulsamy, (2000) 9 SCC 549;
Union of India v. Ram Sumujh and another, (1999) 9 SCC 429; NCB v.
Kishan Lal, (1991) 1 SCC 705; and also the judgments of this court in
Sameer v. State of Kerala, 2021 (5) KHC 338 and Chandran v. State of
Kerala, 2008 (2) KLT 513 to contend for the position that petitioners are not
entitled to bail on a contention that sampling was not done in accordance with
Standing Orders and there is procedural violation.
14. Now let me consider the contention of the petitioners in the light
of the Standing Order and the judgments/orders relied on by them. The
petitioners specifically refer to Clause 2.4 of Circular No.1/1989 under the
head General Procedure for Sampling, Storage, etc. Clause 2.4 reads as
follows:-
In the case of seizure of a single package/container, one sample in duplicate
shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from
each package/container in case of seizure of more than one package/container.
(underline supplied)
15. The petitioners rely on the judgment in Amani Fidel Chris's
case supra which has also referred to Circular No. 1/89 and held in the said
case that drawing of sample neither confirmed to the procedure prescribed
under Section 52-A of the NDPS Act nor under the Standing Order and
acquitted the accused therein. The specific contention in Amani Fidel
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
Chris's case supra is violation of the procedure prescribed under the
Standing Order. Firstly, that is a decision in an appeal against conviction, and
going through the judgment it is seen that acquittal was granted taking into
consideration other aspects including non-examination of independent
witnesses and further that though the prosecution alleged two different
recoveries, the first recovery was disbelieved by the trial court. Further, it is to
be seen that relevant provision in the said Standing Order which is applicable
to the facts of the present case is Clause 2.4 which only says that normally, it
is advisable to draw one sample from each packet/container in case of
seizure of more than one package/container and the learned Public
Prosecutor contended that even by a mere reading of the said Clause, it does
not appear to be made mandatory. Another important aspect to be
considered is that even though the appeal against the said judgment was
dismissed, the Apex Court has consciously left open the question of law and
therefore, the judgment in Amani Fidel cannot be treated as final and
conclusive.
16. Reliance is placed on Noor Aga's case supra which is also an
appeal against the order of conviction which was decided taking into
consideration various other aspects. Essentially the question decided is that
the procedure taken by the Customs Department in destroying the case
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
property was found to be irregular and it is in the said context it was said that
the physical evidence being the property of the court should be disposed of
strictly in accordance with the law.
17. Mohanlal's case supra was dealing with a case where the court
was considering a conflict between the statutory provisions governing taking
of samples and the Standing Order issued by the Central government and
the court only directed that the Central Government to re-examine the matter
and take suitable steps so as to avoid confusion in the minds of the
authorities while discharging their official duty and in the operative portion of
the judgment it was has held that in the matter of seizure and sampling the
court should comply with Section 52-A of the Act which mandates the
sampling shall be done under the supervision of the learned Magistrate. I
feel that the judgment did not consider the question that is mooted by the
petitioner herein.
18. Gaunter Edwin Kircher's case supra heavily relied on by the
counsel for the petitioners was also an appeal against conviction. In the said
case, two cylindrical pieces of Charas having 7 gms and 5 gms respectively
were seized and sample was taken only from the cylindrical piece having 5
gms and sent for chemical examination whereas no sample was taken from
the cylindrical piece having 7 gms of Charas and the Apex Court held that as
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
no sample was taken from one portion, it cannot be held that petitioner
therein was in possession of 12 gms of Charas and can be punished only for
having in possession of small quantity. I am of the opinion that the facts of
the present case are not similar to that being considered in the said
judgment.
19. Learned counsel for the petitioners also relied on orders of the
various High Courts whereby bail was granted on the ground of taking
samples in violation of the Standing Orders in this regard. Most of the orders
were passed relying on the judgment in Noor Aga's case supra, Gaunter
Edwin Kircher's case supra and Amani Fidel Chris's case.
20. Now let me consider the judgments relied on by the prosecution
in support of their contention. The learned prosecutor relied on the judgment
in Sumit Tomar's case supra in which the Apex Court was considering the
effect of taking samples after mixing the contraband and held that merely
because different punishments have been prescribed depending on the
quantity of the contraband, mixing of two bags will not cause any prejudice to
the appellant therein and rejected the contention taken by the appellant
therein that police should have taken two samples each from the two bags.
The prosecutor also relies on the judgment in Mohanlal's case supra to
contend that the Apex Court has held that soon after the seizure is made
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
further proceedings as contemplated under Section 52A of the Act should be
followed and the Apex Court has only said that the Central Government
should take necessary steps since the Standing Order in its present form is
bound to create confusion in the minds of the authorities concerned instead
of helping them in the discharge of duties. He further relies on judgment in
Chandran's case supra, though one under the Abkari Act, which held that
when several bottles were seized, it is not necessary that sample need be
taken from each bottle. The learned public prosecutor further relies on the
judgment in Sameer's case supra wherein the contraband was identified by
an Excise Official who is an expert and therefore drawing of samples from
each packet is not necessary and the question as to whether Excise Official
who has identified the article is an expert or a competent authority cannot be
looked into while considering a bail application and that can only be
considered at the time of trial. Relying on the judgment in Paulsamy's case
supra it was contended that whether there was procedural irregularity etc
cannot be looked into at the time of grant of bail. Learned public prosecutor
also relies on the judgment in Ram Samujh's case supra to contend for the
position that the specific reason for incorporating Section 37 of the NDPS Act
was to avoid drug offenders being released on bail on technical grounds and
therefore an accused in an NDPS case could be released on bail until and
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
unless the mandatory conditions provided in Section 37 are satisfied.
Prosecutor also relies on the judgment in Kishan Lal's case supra and
contended that bail can be granted only subject to the limitation contained in
Section 37 of the NDPS Act.
21. It is seen that the judgment of the Apex Court in Sumit Tomar's
case supra was rendered subsequent to Gaunter Edwin Kircher's case
supra by a bench of co-equal strength which specifically considered a similar
issue and rejected the contentions taken that the investigating agency should
have taken two samples each from the two bags without mixing. The Apex
Court was considering the effect of taking samples after mixing the
contraband and held that merely because different punishments have been
prescribed depending on the quantity of the contraband, mixing of two bags
will not cause any prejudice to the appellant therein and rejected the
contention taken by the appellant therein that police should have taken two
samples each from the two bags. The Division Bench of this court in
Chandran's case supra, though in a matter arising out of the provisions in
the Abkari Act, considered a similar question after referring to the judgment in
Gaunter Edwin Kircher's case supra held that checking of sample from one
bottle will be enough to confirm the value of the articles in all the bottles and
that if a large number of similarly labelled bottles purported to contain same
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
type of article are seized, the chemical examination can be done by taking
one bottle or a certain number of bottles selected at random. In these batch
of cases other contentions raised are regarding having no conscious
possession of the contraband, violation of the Standing Orders, and also that
the bail cannot be denied when the allegation against the accused is only
based on financing, call records and confession and to substantiate their
contention petitioners rely on the judgments referred above including Tofan
Singh's case and Pallulabid Ahmad Arimutta's case supra and the other
cases cited supra. Though Amani Fidel Chris's case supra considered the
issue regarding sampling, it was in an appeal filed against conviction.
Further, though the SLP filed against the said judgment was dismissed by the
Apex Court, the question of law decided in Amani Fidel Chris's case supra
was left open. Further, prima facie I find considerable force in the contention
taken by the learned public prosecutor that in the Standing Order relied on by
the petitioners in the matter of sampling when various packets are seized, the
circular only says that it is advisable to draw samples from each packet and
therefore it cannot be considered as mandatory and violation if any cannot be
looked into at the time of bail and could be raised only at the time of trial. I am
not inclined to accept the contention of the petitioners based on the judgment
in Gaunter Edwin Kircher's case supra, Amani Fidel Chris's case supra
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
and other orders of the various High Courts relied on by the petitioner,
especially in view of a judgment of the Supreme Court in Sumit Tomar's
case supra which was rendered subsequent to Gaunter Edwin Kircher's
case supra and also the judgment relied on by the public prosecutor in
Chandran's case supra. Further in Sameer's case supra, Paulsamy's case
supra, and Ram Samujh's case supra the court has held that procedural
irregularity, etc, if any, cannot be looked into at the time of grant of bail. This
position has been reiterated by the Apex Court in Union of India v Md.
Nawas Khan, 2021 (10) SCC 100 and held that when the issue is as to
whether the procedure laid down under the NDPS Act is complied or not, the
same cannot be looked into at the time of grant of bail and can only be
decided at the time of trial, as the same is a question of fact. At this point, this
court cannot evaluate the evidence on record while exercising discretion
under Section 439 Cr.PC Likewise, the question as to whether there was
conscious possession and whether financing, call records and confession
could be reasons that could be considered at the time of considering the bail
application, the same was answered in Md. Nawas Khan's case supra in
which it was further held that absence of possession of contraband on the
person will not absolve them of the level of scrutiny required under Section
37 of the NDPS Act. It was further held that whether the accused were
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
traveling along with the co-accused, CDR analysis of the mobile phones
which show regular touch with the other accused, etc are relevant
considerations at the time of consideration of bail application. In the present
case, I am of the prima facie opinion that other than the confession statement
of the co-accused there are other materials to connect the accused with the
alleged crime, though of course, the veracity and acceptability of those
materials are all matters to be considered at the time of trial.
22. The Apex Court recently in the Narcotics Control Bureau v.
Mohit Aggarwal, 2022 SCC OnLine SC 891, after referring to Tofan Singh's
case (supra) held as follows:
17. Even dehors the confessional statement of the respondent and the other co-
accused recorded under Section 67 of the NDPS Act, which were subsequently
retracted by them, the other circumstantial evidence brought on record by the
appellant-NCB ought to have dissuaded the High Court from exercising its
discretion in favour of the respondent and concluding that there were
reasonable grounds to justify that he was not guilty of such an offence under the
NDPS Act. We are not persuaded by the submission made by learned counsel
for the respondent and the observation made in the impugned order that since
nothing was found from the possession of the respondent, he is not guilty of the
offence for which he has been charged. Such an assumption would be
premature at this stage.
18. In our opinion the narrow parameters of bail available under Section 37 of
the Act, have not been satisfied in the facts of the instant case. At this stage, it
is not safe to conclude that the respondent has successfully demonstrated that
there are reasonable grounds to believe that he is not guilty of the offence
alleged against him, 'or him to have been admitted to bail. The length of the
period of his custody or the fact that the chargesheet has been filed and the trial
has commenced are by themselves not considerations that can be treated as
persuasive grounds for granting relief to the respondent under Section 37 of the
NDPS Act."
It is also profitable to extract the observation of the Apex Court while
considering the impact of Section 37 when deciding a bail application in
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
Union of India v. Ram Samujh, (1999) 9 SCC 429, which reads as follows:
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.
23. The offence alleged against the petitioners are very grave and
serious in nature. Earlier applications filed by the 12th and 14th accused
were rejected by this court. Since the quantity involved is 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 Act are satisfied so as to grant bail.
24. Taking into consideration the fact that the final report is already
filed and the fact that petitioners are in custody for a long, there will be a
direction to the trial court to expedite the trial of the case.
25. It is also 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.
26. As per the latest statistics discernable from the paper report etc.,
the trafficking and trade in narcotics have assumed serious and alarming
proportions in recent times, affecting a sizeable section of the public,
B.A.Nos. 8569 of 2021 and 479, 884, 991,
4581, 4891 & 6018 of 2022
particularly adolescents and students. Before parting with the case, this court
expresses its great concern about the present situation. Though it is
commendable that the Government has taken various steps in this regard,
including educating the student community about the dangerous effect of the
use of drugs, the authorities should take every step for continued
surveillance, especially nearby the schools and colleges so as to save the
new generation from its dreadful impact. There will be a direction to the State
Government and the Law Enforcing Agencies including the Police and Excise
Department to be more vigilant to curb the menace of drug trafficking and
deal with it with an iron hand.
Registry is directed to forward a copy of this order to the Chief
Secretary to the Government, Kerala for information and appropriate action.
All these bail applications are accordingly dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
