Abu Tahir vs State Of Kerala
2023 Latest Caselaw 5204 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 19TH DAY OF APRIL 2023 / 29TH CHAITHRA, 1945
                      BAIL APPL. NO. 8672 OF 2022
      Crime No.1472/2021 of Angamali Police Station, Ernakulam District

 AGAINST THE ORDER IN BAIL APPL.3448/2022 OF HIGH COURT OF KERALA


PETITIONER:

           ABU TAHIR
           AGED 33 YEARS, S/O SHAMSUDHEEN,
           RESIDING AT PULKKAKUDY HOUSE, KANDANTHARA,
           VENGOLA VILLAGE, KUNNATHUNADU TALUK,
           ERNAKULAM DISTRICT, PIN - 683556.

           BY ADVS.
           JOMY K. JOSE
           GODWIN JOSEPH



RESPONDENT:

           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, ERNAKULAM, THROUGH STATION HOUSE OFFICER,
           ANGAMALY POLICE STATION, ERNAKULAM DISTRICT, PIN -
           682031

           BY ADVS.
           ADVOCATE GENERAL OFFICE KERALA
           ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)


OTHER PRESENT:

           SRI. C K SURESH (SR PP)


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19-
04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A. No.8672/2022                           -2-

                                       ORDER

The petitioner is the 6th accused in Crime No.1472/2021 of Angamali Police

Station, Ernakulam District alleging commission of offences under Sections 8 (c),

20 (b), (ii) (C), 27A, 29 and 31 (1) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short).

2. The allegation against the petitioner is that the petitioner entered into a

conspiracy with the other accused in the case and had engaged in the purchase and

transportation of ganja from the State of Andhra Pradesh with the intention of

selling it in the State of Kerala. A total of 225.38 Kgs of dry ganja was found in the

possession of accused Nos.1, 2 and 3 while they were engaged in transporting the

same in two different cars from Andhra Pradesh to Kerala. The specific allegation

against the petitioner is that he had financial transactions with the other accused

and he had financed the purchase and transportation of ganja from Andhra Pradesh

with the intention of selling it in the State of Kerala.

3. The learned counsel appearing for the petitioner would submit that the

details of financial transactions in which the petitioner was involved would show

that apart from normal transactions between the petitioner and some among the

other accused (who were on friendly terms with the petitioner) there is nothing in

the pattern or the number of transactions to indicate that the petitioner had

financed the purchase of ganja from Andhra Pradesh. It is also pointed out that

there is no transaction whatsoever between the petitioner and the 7 th accused who is

a native of Andhra Pradesh and alleged to be the supplier of the contraband. It is

submitted that there is nothing in the call data records to suggest that the petitioner

had ever contacted the 7 th accused. It is also submitted that large number of calls

allegedly made by the petitioner were from mobile number 9633364847. It is

submitted that the said telephone number is registered in the name of the 5 th

accused and is in the possession of his wife. It is submitted that since there are no

materials to connect the petitioner with the offence the provisions of Section 37 of

the NDPS Act may not be a bar to grant bail to the petitioner and that even if the

provisions of Section 37 were to apply, the delay in the commencement of trial even

after submission of the chargesheet, is a ground to grant bail to the petitioner. The

decisions of the Supreme Court in Chitta Biswas @ Subhas v. the State of

West Bengal (Crl. Appeal No.245/2020) and in Mahmood Kurdeya v.

Narcotics Control Bureau (Crl. Appeal No.1570/2021) are referred, to establish

that even in a case where Section 37 of the NDPS Act is attracted the Supreme Court

has granted bail on account of the fact that there is considerable delay in the

commencement of trial.

4. The learned Public Prosecutor would submit that there are no

circumstances different from that obtaining at the time when this court had

considered the earlier bail application of the petitioner. It is submitted that the fact

that there is no seizure of the drug from the possession of the petitioner is no

ground to consider that the petitioner is innocent in the matter. Reliance is placed

in the decision of the Supreme Court in Union of India through Narcotics

Control Bureau v. Md. Nawaz Khan; AIR 2021 SC 4476. The judgment of the

three judges bench in Narcotics Control Bureau v. Mohit Aggarwal; 2022

KHC 6720 is cited to contend that the mere fact that the chargesheet has been filed,

length of custody and that trial has commenced are not considerations that should

be treated as persuasive grounds for grant of bail to the accused notwithstanding

the provisions contained in Section 37 of the NDPS Act.

5. Having heard the learned counsel appearing for the petitioner and the

learned Senior Public Prosecutor appearing for the State, I am of the view that the

petitioner has not made out any case for grant of bail to the petitioner. The reasons

which compel me to take such a view are the following:-

(i) There is no change in circumstances which would enable this court to take a

view different from the view taken while considering the earlier bail application of

the petitioner through order dated 29-03-2022 in B.A. No.1531/2022;

(ii) The orders of the Supreme Court in Mahmood Kurdeya (supra) and

Chitta Biswas @ Subhas (supra) do not appear to be the authority for the

proposition that whenever there is a delay in commencement of trial, the accused

involved in an offence concerning commercial quantities of a narcotic drug is

entitled to bail notwithstanding the provisions of Section 37 of the NDPS Act. The

facts in Mahmood Kurdeya (supra) are entirely different. The court in that

case had considered the fact that the manufacturer who sold tablet in question

(Tramadol X-225) to the petitioner had been granted bail. Of course, there is an

observation that the trial had also not commenced. However, it is settled law that

the decision cannot read divorced from the facts in that particular case and

therefore the order of the Supreme Court in Mahmood Kurdeya (supra)

cannot come to the aid of the petitioner. Similarly the order in Chitta Biswas @

Subhas (supra) also does not compel this court to take the view that whenever

there is an inordinate delay in commencement of trial, the accused in an NDPS case

must be granted bail notwithstanding the rigor of Section 37 of the NDPS Act. More

over the judgment of 3 judges bench of the Supreme Court in Mohit Aggarwal

(supra) appears to take the view that such considerations should not be treated as

persuasive grounds for grant of bail.

(iii) The fact that there was no recovery of any drug from the possession of the

petitioner is no ground to take a view that the petitioner is not guilty of the offences

alleged against him. The judgment of the Supreme Court in Md. Nawaz Khan

(supra) is the authority for the said proposition.

(iv) A perusal of the final report seems to suggest that the prosecution has

gathered sufficient materials to suggest that the petitioner was also involved in the

conspiracy to purchase ganja from Andhra Pradesh and to transport it to Kerala for

the purposes of sale.

The bail application therefore will stand dismissed, making it clear that the

observations made in this order are only for the purpose of considering the

entitlement of the petitioner for grant of bail and should not in any manner

influence the trial court.

Sd/-

GOPINATH P.

JUDGE

AMG

APPENDIX OF BAIL APPL. 8672/2022

PETITIONER ANNEXURES

Annexure A1 A TRUE COPY OF THE FIR DATED 08.11.2021 IN CRIME NO.

1472/2021 OF ANGAMALY POLICE STATION

Annexure A2 A TRUE COPY OF THE REMAND REPORT DATED 21.12.2021 IN CRIME NO. 1472/2021 OF ANGAMALY POLICE STATION

Annexure A3 A TRUE COPY OF THE REMAND APPLICATION DATED 06.05.2022 IN CRL. MP. NO 1025/ 2022 OF THE HON'BLE SESSIONS COURT, ERNAKULAM.

Annexure A4 A TRUE COPY OF THE ORDER DATED 22.01.2022 IN CRL. MC NO. 140/2022 OF THE HON'BLE SESSIONS COURT, ERNAKULAM.

Annexure A5 A TRUE COPY OF THE ORDER DATED 29.03.2022 IN B.A.

NO. 1531/2022 OF THIS HON'BLE COURT.

Annexure A6 A TRUE COPY OF THE ORDER DATED 21.06.2022 IN B.A.

NO. 3448/2022 OF THIS HON'BLE COURT