Shri. Balakrishnan Periyasamy ... vs Union Of India
2023 Latest Caselaw 9017 Ker

B.A.No.4186/23                      1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
 WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                    BAIL APPL. NO. 4186 OF 2023
  AGAINST THE ORDER/JUDGMENT SC 1140/2022 OF I ADDITIONAL
                        DISTRICT COURT, ERNAKULAM
PETITIONER/ACCUSED NO.24:

             SHRI. BALAKRISHNAN PERIYASAMY PILLAI,
             AGED 52 YEARS,
             S/O.PERIYASAMY PILLAI, RIVER HEIGHTS APARTMENTS,
             FLAT NO. 8D, NEW NO. 12-62, OLD NO. 315-62, 8TH
             FLOOR, VALUUVAR KOTTAM HIGH ROAD, NUNGAMBAKKAM,
             CHENNAI. PRESENTLY LODGED AT DISTRICT JAIL,
             ERNAKULAM, PIN - 600 034
             BY ADVS.
             KRITIKA KAMAL P.
             B.KUMAR


RESPONDENT/COMPLAINANT:

     1       UNION OF INDIA,
             REPRESENTED BY ADDITIONAL DIRECTOR GENERAL,
             DIRECTORATE OF REVENUE INTELLIGENCE,
             COCHIN UNIT, KOCHI, PIN - 682 025.
     2       THE INTELLIGENCE OFFICER,
             THE DIRECTORATE OF REVENUE INTELLIGENCE,
             COCHIN ZONAL UNIT, NO. 32/641 A, BUILDING NO.
             32/641A, VYLOPILLI ROAD, ST THOMAS LANE,
             PALLINADA, PALARIVATTOM, COCHIN. O.R. NO. 2/2022
             OF DRI COCHIN F. NO. DRI/COZU/CHN/02/ENQ-
             02/2022, PIN - 682 025.
             BY ADV S.MANU
             Adv Suvin R Menon- CGC
      THIS       BAIL     APPLICATION      HAVING   COME   UP   FOR
ADMISSION ON 23.08.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 B.A.No.4186/23                    2



                              ORDER

The petitioner is the 24 th accused in O.R No.2 of 2022

F.No.DRI/CoZU/CHN/02/Enq-02/2022 of DRI Cochin, which is

now pending before the 1st Additional District & Sessions

Court, Ernakulam as S.C.No.1140/22. The offences alleged are

under Section 21(c) 23(c), 25, 27A, 28 and 29, read with

Section 8(c) of the NDPS Act. The cognizance was taken based

on a complaint submitted by the Senior Intelligence Officer,

Directorate of Revenue Intelligence, Cochin.

2. The case was initially registered in connection with

the seizure of Narcotic drugs by the Coast Guard, while the

same was being transported in two boats. To be precise, based

on information received, the Coast Guard intercepted two

boats, namely, "Little Jesus" bearing Reg.No.IND-TN-15-MM-

5359, and "Prince" bearing Reg.No.IND-TN-15-MM-5467,

which had sailed from the Coast of Tamil Nādu with 217.525

Kgs of Heroin kept in nine packets,. It is alleged that the said

contraband articles were obtained from a foreign vessel and

while the same was being transported through Indian waters,

the seizure was effected. The arrest of the inmates of the said

boats, total 20 in number, was recorded on 21.05.2022, after

the boats were brought to Kochi Harbour, and all of them were

produced before the Judicial First Class magistrate-I Kochi and

were remanded to judicial custody. Immediately after

apprehending the boat and the inmates thereon, information

was received from the said persons as to the involvement of

accused Nos.21,22 and 23, as the persons who have facilitated

the said transportation, and accordingly, the said persons were

arrested on 20.05.2022 from Thiruvananthapuram. The

seizure of the boat was effected on 20.05.2022. Thereafter, the

statements of all the said persons under Section 67 of the

NDPS Act were obtained. From the same, it was revealed that

based on a larger conspiracy between the accused persons,

they procured the contraband article from a foreign ship and

to transport the same, two boats mentioned above were

purchased by the Accused No.23 with the help of other

accused. During the further investigation, the investigating

officer noticed the fact that the person using the mobile

No.7695983089 was in regular contact with the accused 22

and 23 . While tracing the call data records of the said mobile

number, it was revealed that the said number was used by

someone for regular contact with Miss. Sribrundha, (LW44) an

employee of Axis Bank, Kilpauk branch, Chennai. Upon

recording her statement under Section 67 of the NDPS Act, it

was revealed that the said number was being used by the

petitioner herein, who is a native of Chennai. LW 44 provided

the address and copies of identity cards of the said accused,

who was one of the premium customers of the Axis Bank.

Accordingly, the officers of the DRI conducted a search in the

residence of the petitioner at Chennai on 23.06.2022 in the

presence of the petitioner. Thereupon, certain documents like

PAN Card, certificates, a number of mobile SIM cards, covers

of SIM cards, mobile phone cover, documents related to bank

accounts such as cheque books, debit cards, a pen drives etc.

were recovered and seized by preparing a Mahazar. In

addition to the above, a baggage under the possession of the

1st accused was also recovered. On examination of the same, it

was revealed that it contained 13 mobile phones without SIM

cards. On analysis of the aforesaid mobile phones, it was

revealed that the petitioner used the said phones at different

points of time and the petitioner was in regular contact with

accused Nos.22 and 23. At his instance, two boats were

purchased for transportation of the contraband article and the

funds were also provided by him. Accordingly, the petitioner

was arrested on 23.06.2022 and has been under judicial

detention since then. The complaint has already been

submitted by the 2nd respondent herein before the

jurisdictional court within the time and cognizance is also

taken thereon. This application for regular bail is submitted in

such circumstances.

3. Heard Sri.B.Kumar, learned Senior counsel

appearing for the petitioner/accused No.24 and Sri.S.Manu,

learned Deputy Solicitor General of India, appearing for the

respondents.

4. The learned counsel for the petitioner submits that

the petitioner is not involved in the aforesaid case, and he was

falsely implicated. It was pointed out that apart from the

confession statements of the co-accused and certain call data

records between the petitioner and some of the accused

persons, there are absolutely no materials to establish the

involvement of the petitioner. It was pointed out that, in the

light of the decisions rendered by the Honourable Supreme

Court in Tofan Singh v. State of TN, [2021 (4) SCC 1], the

confession statement, including the statement under section

67 of the NDPS Act, cannot be accepted as admissible

evidence. Besides the same, the learned counsel also placed

various decisions to contend that, the confession statement

and the call data records were not sufficient to establish the

guilt of the accused. With regard to the manner in which the

appreciation of the materials is to be made for section 37 of

the NDPS Act, learned counsel for the petitioner also relied on

the decision rendered by the Honourable Supreme Court in

Muhammed Muslim @ Hussain v. State (NCT of Delhi)

2023 3 KLT, 504 SC.

5. The learned DSG, on the other hand, would stoutly

oppose the application by highlighting that the petitioner is the

kingpin behind the entire transaction and it was he who, along

with accused Nos.22 and 23, facilitated the transaction and

necessary finance were also provided by him. During the

course of the investigation, the DRI could collect ample

evidence in the form of call data records, tower locations of the

mobile numbers used by the petitioners, etc., to establish his

involvement. It was pointed out that before carrying out the

transportation, the petitioner had met accused Nos.22 and 24

at different places including Bangalore and Mumbai, to hatch

the criminal conspiracy to carry out the transactions. The

petitioner was in regular contact with the other accused as

well, all along, and therefore, the dismissal of the application

was sought.

6. I have carefully gone through the records. One of

the crucial contentions raised by the learned counsel for the

petitioner is that, apart from the confession statements of the

co-accused and that of the petitioner, there are absolutely no

materials indicating the involvement of the petitioner. It is

true that, in the light of the principles laid down by the

Honourable Supreme Court in Tofan Singh's case (supra),

based on the confession statement alone, an accused cannot be

prosecuted even in respect of the offences under the provisions

of NDPS Act. However, the crucial aspect to be noticed in this

case is that, in addition to the confession statements, the

prosecution could collect so many other materials which would

corroborate the contents of the said statements. The

respondents are relying on the call data records and the tower

locations of the petitioner to establish the same, and the

complaint submitted by the 2nd respondent contains a detailed

analysis of the data they could collect from the scientific

examination of the mobile phones recovered from the

possession of the petitioner. The specific case of the

prosecution is that consequent to the conspiracy hatched

between the accused Nos.21 to 24, they had procured boats

referred to above for the purpose of transporting the

contraband article, and by using the same, with the help of the

accused Nos.1 to 20 they sailed and reached at a spot in the

territorial waters of India. Thereafter they collected nine

packets containing Heroin weighing 217.525 Kgs which is

valued at more than Rs 1500 Crores. It is also the case of the

prosecution that the said contraband articles were supplied

from a foreign vessel and the accused persons have used a

satellite phone to contact an unidentified person who came in

the said foreign vessel to effect the said supply. To procure the

boats and to get the necessary manpower for carrying out the

transactions, the accused persons have had conspiracies at

Bangalore and Mumbai on various dates. The aforesaid

aspects are sought to be established from the call data records

and the tower location of the petitioner herein. The details of

the same are specifically mentioned on page 104 to 108 of the

complaint submitted by the 2nd respondent, in a tabular form.

In addition to the same, the exact tower location details of the

petitioner as well as the accused Nos.22 and 23 are also

specifically furnished on pages 121 to 131 of the complaint

submitted by the 2nd respondent. A detailed analysis of the

facts revealed from the data referred to in the above details is

also mentioned on pages 132 to 145 of the complaint. In the

aforesaid pages of the complaint, all details regarding the

number of mobiles used with their IMEI numbers, the SIM

cards used in those phones, the details of the calls made

between the accused persons, their tower locations at the

relevant time etc, are provided, which would indicate that the

accused Nos.21, 22 and 23 along with accused No.24 hatched

conspiracies in the locations at Bangalore and Mumbai on the

dates referred to therein. To be precise, an analysis of the

materials would reveal that the said accused persons were

under the very same mobile tower at the relevant times, and

the duration in which they were under the very same tower

was also clearly mentioned. Besides the same, the

investigation team also collected necessary materials including

copies of the registers maintained by the hotels at Bangalore

and Mumbai on the relevant dates where the accused persons

mentioned above, have stayed. The details of the fights

through which they reached the place were also established

through the tickets obtained by the respective accused persons

for the purpose of the said travel.

7. Of course, it is true that, out of the mobile numbers

allegedly used by the petitioner except for one number, all the

other numbers were taken in the name of some other persons,

mostly the migrant labourers from North India. However, the

telephone number 7695983089 was found to be used by him,

and this aspect is sought to be established by relying on the

statements of LW44, LW45 and LW50. LW44 is the Deputy

Manager (Sales) of Axis Bank, Kilpauk Branch, and she stated

that, the petitioner herein used to contact him by using the

aforesaid mobile number. According to her, the petitioner was

a regular and priority customer of their Branch, and he used to

provide sufficient funds when LW44 required to meet her

monthly/annual targets fixed by the bank. Later, as the

petitioner informed her that he was no longer using the above

telephone number, she deleted the said number, and he used to

call her from another number 9677299058, thereafter. Later,

he called her from another number, 9994310658 and told her

that this was his new number.

8. LW45 is the Senior Sales Business Manager of Bajaj

Alliance Life Insurance, who had a tie up with Axis Bank.

According to him, the petitioner was introduced to him by

LW44 in connection with certain investments to be made.

LW50 is the person who was managing the prawn farm of the

petitioner herein at Velankanni. He also stated that, the

petitioner used to contact him through the phone number

mentioned above and also from some other numbers. On page

No.102, and 103 and 104 of the complaint, the details of

analysis of mobile numbers used by the petitioner are

provided. The crucial aspect to be noticed is that at page 103,

the usage of different mobile numbers of the petitioner at

different periods are mentioned, and the coincidence of the

change in mobile numbers with the crucial events in the

transactions which are the subject matter of this case, are also

mentioned. The table showing the same is as follows:

Ref.No. Mobile Date from Date to Relevance of period in which Number whihc used which used number is put into use M-1(2) 6380178079 04.10.2020 22.02.2022 TO:'Little Jesus' boat was intercepted by Navy in its first attempt on 22.02.2022.

M-1(3) 7695983089 28.02.2022 20.05.2022 FROM:'Little Jesus' boat was intercepted by Navy in its first attempt on 22.02.2022 TO: Seizure of 217.525 Kgs of Heroin at Cochin on 20.05.2022.

M-1(4) 9994310658 21.05.2022 23.06.2022 FROM: Seizure of 217.525 Kgs of Heroin at Cochin on 20.05.2022.

M-1(5) 9514150225 24.09.2021 20.05.2022 FROM: Even though the number was activated on 15.11.2021, it only used during 22.02.2022 to 23.03.2022.

                                               TO: Seizure of 217.525 Kgs of
                                               Heroin    at     Cochin   on
                                               20.05.2022.

M-1(6) 9361519083 21.05.2022 22.06.2022 FROM: Seizure of 217.525 Kgs of Heroin at Cochin on 20.05.2022.

M-1(7) 9945911546 31.05.2022 22.06.2022 FROM: Seizure of 217.525 Kgs of Heroin at Cochin on 20.05.2022.

M-1(8) 9353550646 30.05.2022 22.06.2022 FROM: Seizure of 217.525 Kgs of Heroin at Cochin on

20.05.2022.

9. At pages 141 to 145 of the complaint, the details of

the mobile phones used by the petitioner, and the data that

could be collected from the analysis of the said phones after

subjecting the said phones to scientific examination, are

mentioned. One crucial aspect discernible from the said data

is that, from the details extracted from a mobile phone

RealmeNarzo 50A model RMX 3430, which was used by

inserting a SIM with mobile number 9353550646, the images

including the photo of sample packets containing off-white

powder suspected to be Heroin, ATM receipts, and photo of an

Indian currency of denomination 500, were recovered.

10. In addition to the same, the learned DSG also

pointed out that the petitioner was involved in two other cases

for the offences punishable under the provisions of the NDPS

Act for transporting the narcotic drugs in commercial quantity.

However, it was admitted that the petitioner was acquitted in

those cases after a full-fledged trial. But it would indicate that

the petitioner was always exposed to the transaction of

narcotic drugs, and this is also a crucial aspect which cannot

be ignored.

11. Thus, from the analysis of the materials as

mentioned above, it can be seen that, besides the confession

statements, there are several materials showing the role of the

petitioner, at least prima facie. Of course, the learned senior

counsel appearing for the petitioner vehemently contended

that the call data records and the tower locations are

insufficient to establish the complicity of the petitioner. It was

pointed out that as far as the tower location is concerned, that

would only indicate that the parties were under the coverage

area of a particular tower at the relevant time, which could be

a larger area extending to kilometres. Therefore, it cannot be

relied on to establish that the persons under the same tower at

a particular point of time were together and interacting.

However, the aforesaid aspect is not at all relevant as far as

the present stage of the case is concerned. It is a matter to be

considered during the course of the trial. In this regard, the

learned counsel relied on the decision of the Honourable

Supreme Court in Bharath Chowdari v. Union of India

(2021 SC Online 1235-SLP Crl.No.5703/21 rendered on

31.12.2021). Besides the same, decision rendered by the

High Court of Gujarat in CrimInal Misc Application No 1234 of

2022 in Yash Jayeshbhai Champaklal Shah v. State of

Gujarat and the decision rendered by the Punjab and Haryana

High Court in CRM-M-39657 of 2020 (O&M) in Vikranth

Singh v. State of Punjab was also relied on. In Bharat

Coundhary's case (supra), the Honourable Supreme Court

observed that the reliance on printouts of WhatsApp messages

downloaded from the mobile phone and devices seized from

the office premises of the accused could not be treated at the

stage of bail as sufficient material to establish a live link

between the petitioner therein and the other accused.

Similarly, in the decision rendered by the High Court of

Gujarat and the High Court of Punjab and Haryana, referred to

above, it was observed that, in the absence of any specific

materials showing the transcripts of the telephone calls

between the accused persons, the call data records and the

WhatsApp messages downloaded from the mobile phones could

not be accepted as the evidence for establishing the complicity

of the accused. However, the important aspect to be noticed in

this regard is that, in this case, the materials produced by the

prosecution are not mere printouts of the data obtained from

the devices seized from the accused. On the other hand, the

said devices were subjected to thorough scientific examination

and the call data records, the tower locations, and GPS

coordinates were collected and analysed, and detailed reports

were prepared based on the same. From the examination of

the said data, it was revealed that the petitioner, during the

relevant time, was along with the other accused. In the

decisions referred to above, the materials in the form of the

outputs of such meticulous scientific analysis were not there,

and the same is a crucial factor distinguishing this case from

the said cases.

12. In this case, the materials would reveal that the

petitioner, a native of Chennai, travelled to Bangalore and

Mumbai and met with the accused Nos 21, 22 and 23 on

22.03.2022 and 17.04.2022, respectively. The analysis of the

tower locations of the petitioner and the other accused would

also reveal that they were under the same coverage area of

certain mobile towers at the same point of time during these

days. Immediately after those days, some events closely

related to the transactions, which are the subject matter of this

case, occurred. When all those aspects are taken into

consideration as a whole, the same cannot be simply

disregarded as mere coincidences. On the other hand, the

same would make out a strong case to establish the links of the

petitioner with the case.

13. In this regard, it is to be noted that, as to the

manner in which the rigour under Section 37 of the NDPS Act

is to be considered, the observations made by the Honourable

Supreme Court in Mohd Muslim @ Hussain v. State (NCT

of Delhi) 2023(3) KLT 504 (SC) are relevant. In para 20 of

the said decision it was observed that,

" The standard to be considered therefore, is one, where

the court would look at the material in a broad manner,

and reasonably see whether the accused's guilt may be

proved. The judgments of this court, therefore,

emphasized that the satisfaction which courts are

expected to record, i.e., that the accused may not be

guilty is only prima facie based on a reasonable reading ,

which does not call for meticulous examination of the

materials collected during the investigation(as held in

Union of India v. Rattan Malik (2009) 2 SCC 624)

..................."

14. The Honourable Supreme Court in State of

Kerala v. Rajesh [2020 (12 ) SCC 122] in paragraph No.21

it was observed as follows:

"20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged

offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

15. In this case, when the materials placed before this

Court are considered in the light of the aforesaid observations,

I am of the view that, the appreciation of the said materials

cannot lead to a reasonable conclusion that the petitioner is

not guilty. The presence of the petitioner at crucial points of

time, along with the other accused persons, cannot be simply

ignored as mere coincidence. In this regard, it is to be noted

that a careful scrutiny of the materials reveals the following

aspects which cannot be disregarded;

i). During the investigation it was revealed that the person using the mobile phone bearing No 7695983089, had conspired with the accused Nos 21, 22 and 23 in carrying out the transactions and providing funds for the same. LW -44, the employee of Axis Bank, identified the petitioner as the person who used to contact her regularly from the said number..

The fact that the petitioner was using the said number was confirmed by LW-45 and LW-50 as well.

ii) During the search conducted in the residence of the petitioner, 13 mobile phones (without sims), which were not in use at the relevant time, were recovered. The scientific analysis of the said mobile phones revealed that the petitioner used the same by using different sims on various periods.

iii) The Forensic analysis of the mobile phones recovered from the petitioner reveals that the petitioner had used the said phone except one which is in his name, only for certain periods. Each phones were discarded immediately on the occurrence of an incident related to this case. The said facts are clearly evident from the table at page 103 of the Complaint and analysis of the said data therefrom.

iv) On 22.03.2023, the petitioner met Accused Nos 21, 22 and 23 at Bangalore, and the presence of the petitioner along with the said accused is clear from the call data records, the tower locations and the GPS coordinates. The said details are specifically provided on page 123 and 124 of the Complaint.

v) On 16.04.2022, the petitioner reached Mumbai, from Chennai. The accused Nos 1, 21 and 23, reached Mumbai on the same day from Thiruvananthapuram via Chennai. Accused No 22 also reached Mumbai from Chennai via Trichy. On 17.04.2022, the petitioner met A21, A22 and A23 at Mumbai Koshya Suites. The details are available in the table of call data records, tower locations and GPS coordinates provided on pages

125 to 130 of the Complaint. Besides the same, there are documents collected from the respective Hotels where the parties stayed and the documents relating to flight booking details are also available.

vi) The fact that, the petitioner, a native of Chennai, reaching at Bangalore and Mumbai on certain dates, where the accused Nos 21, 22 and 23 were also there on the relevant dates, followed by some important events occurring after the said dates, makes out a strong circumstance, indicating the involvement of the petitioner in the conspiracy.

vii) The search in the residence of the petitioner resulted in recovery of 13 mobile phones, which were not in use at the relevant time, is unusual. Moreover, the period of usage of the said phones, as revealed from the forensic analysis, coincides with the important events relating to the transportation of the contraband articles, which is very conspicuous.

viii)Frequent changes in mobile phones, after taking sim cards in the name of migrant labourers, is yet another aspect. This cannot be ignored, as the change of mobile coincides with some of the important events in the transactions, which are the subject matter of the crime.

ix) From the details extracted from the mobile phone, RealmeNarzo 50A model RMX 3430, which was used by inserting a SIM with mobile number 9353550646, the images including the photo of sample packets containing off-white powder suspected to be

Heroin, ATM receipts, and photo of an Indian currency of denomination 500, were recovered.

x) The petitioner was earlier implicated in two other crimes for the offences under the provisions of the NDPS Act, where the contraband articles in commercial quantity were involved. Indeed, the petitioner was acquitted in both the said case, but the said fact indicates that, he was exposed to the trade of narcotic drugs.

16. When all the above aspects are considered together,

it can be seen that there are so many aspects which makes out

a strong case of conspiracy between the accused mentioned

above. In Kehar Singh and Others v. State (Delhi

Administration) MANU/SC/0241/1998, it was observed by

the Honourable Supreme Court that,

" ................ Generally, a conspiracy is hatched in secrecy, and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can undoubtedly proved by such evidence direct or circumstantial......."

17. Thus, even in the absence of direct evidence, the

conspiracy can be proved through circumstantial evidence

which can be in the form of evidence of acts of various parties

from which a reasonable inference of the common intention

can be drawn. In my view, the aspects mentioned above, make

out a prima facie case against the petitioner and thus rule out

all the inferences to conclude at this stage that, he is not guilty

of the offences.

18. In this regard, the following observations made by the

Honourable Supreme Court in Firozuddin Basheeriddin and

Others v State of Kerala [ (2001) 7 SCC 596] are very

much relevant:

" Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonable foreseeable crime committed by every member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided their commission. The rationale is that criminal acts done in furtherance of a conspiracy may sufficiently depend upon the encouragement and support of the group as a whole to warrant treating each member as casual agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime performed as a part of a larger division of labor to which accused has also contributed his efforts. "

18. Another crucial aspect to be considered is the fact

that, in this case, the quantity involved is 217.525 Kg of

Heroin, which is a very huge quantity sufficient to manipulate

and corrupt the minds of thousands of people. Thus this is a

case in which the strict implementation of section 37 of NDPS

is required to be made at any cost. While considering the

rigour of the statutory stipulation in Section 37 of the NDPS

Act, the observations made by the Honourable Supreme Court

in Union Of India v. Ram Samujh and Others[1999 (9)

SCC 429] are very much relevant, 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. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa[(1990) 1 SCC 95)] as under:

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.

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while

ordering the release of the respondent-

accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

19. In Narcotics Control Bureau v. Mohit Agarwal

[(2022) SCC Online SC 891] at paragraph 17 and 18 it was

observed by the Honourable Supreme Court 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, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet 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."'

20. In the said decision, in paragraph 15, it was

observed as follows:

"15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."

21. Thus, on appreciation of the materials placed before

this Court, by keeping the aforesaid principles in mind, I find

that this is not a fit case in which bail can be granted to the

petitioner. For the reasons mentioned above, any lenient view

in the matter would be against the interest of society as a

whole, and such a release would send a wrong message.

In such circumstances, I do not find any justifiable reason

to exercise the jurisdiction vested upon this Court under

Section 439 of Cr.P.C and to grant bail to the petitioner.

Accordingly, this application is dismissed.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

DG/23.8.23