Kerala High Court
Muhammed Ajmal vs State Of Kerala on 29 November, 2023
BA 9834/23 & con.cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 29TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945
BAIL APPL. NO. 9428 OF 2023
CRIME NO.38/2021 OF ERNAKULAM EXCISE RANGE OFFICE, ERNAKULAM
PETITIONER/3RD ACCUSED:
SHABNA MANOJ
AGED 23 YEARS
DAUGHTER OF MANOJ, THIRUVONAM HOUSE, CHERUVANNUR VILLAGE,
KOZHIKODE DISTRICT., PIN - 673655
BY ADV NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, KOCHI., PIN - 682031
OTHER PRESENT:
SMT.T.V.NEEMA, SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.11.2023, ALONG WITH Bail Appl..9432/2023, 9834/2023, THE COURT ON
29.11.2023 DELIVERED THE FOLLOWING:
BA 9834/23 & con.cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 29TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945
BAIL APPL. NO. 9432 OF 2023
CRIME NO.38/2021 OF Ernakulam Excise Range Office, Ernakulam
PETITIONER/8TH ACCUSED:
SHAMSUDHEEN SAIT,
AGED 57 YEARS
S/O.MUHAMMED KANI, 92/102, 4TH STREET, NETHAJI NAGAR,
TONDIARPET, CHENNAI, TAMIL NADU, PIN - 600081
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
ALWIN JOSEPH
RESPONDENT/STATE :
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 THE EXCISE INSPECTOR,
EXCISE RANGE OFFICE, ERNAKULAM, ERNAKULAM DISTRICT, PIN -
682011
PP SRI M.C. ASHI
BA 9834/23 & con.cases 3
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.11.2023, ALONG WITH Bail Appl..9428/2023 AND CONNECTED CASES, THE
COURT 29.11.2023 DAY DELIVERED THE FOLLOWING:
BA 9834/23 & con.cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 29TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945
BAIL APPL. NO. 9834 OF 2023
CRIME NO.38/2021 OF Ernakulam Excise Range Office, Ernakulam
AGAINST THE ORDER/JUDGMENT CRMC 2406/2023 OF I ADDITIONAL DISTRICT
COURT, ERNAKULAM
PETITIONER/2ND ACCUSED:
MUHAMMED AJMAL
AGED 25 YEARS
S/O ABDHULLA KUNNIL HOUSE CHOORIMOOLA CHENGALA VILLAGE
KASARGOD, PIN - 671541
BY ADVS.
FRANCIS ASSISI
AJEESH S.BRITE
T.D.ROBIN
AMRUTHA P S
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
SR. PP SMT. T.V. NEEMA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.11.2023,
ALONG WITH Bail Appl..9428/2023 AND CONNECTED CASES, THE COURT ON
29.11.2023 DELIVERED THE FOLLOWING:
BA 9834/23 & con.cases 5
MOHAMMED NIAS C.P., J
...................................................................................
Bail Application Nos.9834, 9428, and 9432 of 2023
.........................................................................................
Dated this the 29th day of November, 2023
ORDER
Bail Application No.9834/2023 is filed by the 2nd accused, BA 9428/2023 is
filed by the 3rd accused and BA 94332/2023 is filed by the 8 th accused in Crime
No.38/2021 of Excise Range Office, Ernakulam. The petitioners seek regular bail.
2. The prosecution allegation is that, on 19.8.2021 at 7.00 p.m. the Excise
party conducted a raid at Merhaba Apartment and seized 1.085 kg of MDMA from
the south-east corner of the car porch. Hence, crime is registered against the
petitioners under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "NDPS Act").
3. Learned counsel for the petitioners argue that on 19.8.2021, the very
same day on which the present crime is registered, earlier at 1.40 a.m., a raid was
alleged to have been conducted inside the same apartment and crime 36/2021
was registered initially against five accused for the possession of 83.896 grams of
MDMA. Later, it seems that 25 persons were made accused in that crime. It is
from the same premises that the MDMA is said to have been recovered by about
19 hours by the same officer who earlier registered crime No.36/2021. Petitioners
therefore alleged that the second crime was nothing but a fabrication by the
Excise department. It is also argued that though a charge sheet was submitted on
15.10.2022, the case has not yet been numbered. The petitioners' application for
statutory bail was rejected. The learned counsel for the petitioners also reiterated
the submissions made by the counsel in BA 9834/2023 and submitted that there is
no antecedent except crime 36/2021.
4. The learned counsel appearing in BA 9432/2023 submitted that the
seizure from the same place must be taken as the same crime and the two crimes
being registered is nothing but a fabrication. It is also pointed out that A1, A5
and A6 are on bail. The persons from whom the alleged recovery was made are
on bail. Therefore, these petitioners also may be enlarged on bail.
5. The learned Prosecutor opposing the bail applications submits that
considering the quantity involved, the petitioners may not be released on bail. He
also argued that it was the 8th accused who brought the contraband from
Tamilnadu and handed it over to A1.
6. It is to be noted that the petitioners were arrested on 19.11.2021,
19.11.2021 and 22.3.2022 respectively. So far even the case has not been
numbered, though a charge sheet has been filed on 15.10.2022. As per Rule 78 of
the Criminal Rules of Practice, cases committed to the Court of Session shall be
filed and numbered immediately on the receipt of the intimation of committal.
The cases shall continue to bear the same numbers even when they are
transferred to trial to the Additional or Assistant Sessions Judges.
7. Taking into account the fact that the case has not been numbered and
that they have been in custody for long, there are no antecedents reported
against the petitioners except crime 36/2021 where the seizure was on the same
day and against which the petitioners herein have raised a contention that it is
from one seizure itself and it should have been one case and the splitting up is
nothing but a fabrication. It is also relevant to note that the accused from whom
the seizure was effected were enlarged on default bail.
8. The Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi)
[2023 SCC online SC 352] held that grant of bail on the ground of undue delay
in trial cannot be said to be fettered by Section 37 of the Act. The Apex
Court,again in Rabi Prakash v. The State of Odisha, (SLP Crl. No. 4169 of
2023) has also reiterated that prolonged incarceration generally militates against
the most precious fundamental right guaranteed under Article 21 of the
Constitution of India and in such a situation, the conditional liberty must override
the statutory embargo under Section 37 of the NDPS Act. Considering all these
facts and circumstances and specifically taking note of the fact that the
petitioners have been in custody for more than two years and that they have no
other criminal antecedents except crime 36/2021, that the case has not even been
numbered as a Sessions case after filing of the charge sheet making the
completion of trial in the near future an impossibility, I am inclined to grant bail
to the petitioners on the following conditions:-
i. The petitioners shall execute separate bonds for a sum of Rs.1,00,000/-
(Rupees One Lakh only) each with two solvent sureties each for the like-sum to
the satisfaction of the jurisdictional court;
ii. The petitioners shall appear before the investigating officer in Crime No. 38 of
2021 of Excise Range Office, Ernakulam once a month;
iii.They shall appear before the trial court on all postings except specifically
exempted by the trial Court.
iv. They shall surrender their passports, if any, within seven days from the date of
their release before the Court concerned and if the release of the passports is
required at a later period, the petitioners shall be at liberty to move
appropriate application for the same before the court having jurisdiction. If
they have no passport, they shall file an affidavits to that effect before the
court concerned, on the date of execution of the bond or within three days
thereafter.
v. They shall not attempt to interfere with the investigation or to influence any
witness in the above said crime;
vi.They shall not involve in any other crime while on bail.
vii.They shall not leave the State of Kerala without the permission of the Court
having jurisdiction;
viii.They shall not leave India without the permission of the jurisdictional Court.
ix.They shall furnish their present address along with their mobile number to the
Court concerned as well as to the investigating officer.
If any of the aforesaid conditions are violated, the investigating officer in Crime
No. 38 of 2021 of Excise Range Office, Ernakulam, may file an application before the
jurisdictional court, for cancellation of bail.
SD/- MOHAMMED NIAS C.P.
JUDGE
okb/
APPENDIX OF BAIL APPL. 9432/2023
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE ORDER DATED 30.09.2022 IN
CRL.M.C. NO. 2191/2022 ON THE FILE OF THE
HONORABLE DISTRICT AND SESSIONS COURT,
ERNAKULAM
Annexure 2 TRUE COPY OF THE JUDGMENT DATED 19.10.2023 IN
B.A. NO. 8887/2023 PASSED BY THE HONORABLE
HIGH COURT OF KERALA
Annexure 3 TRUE COPY OF THE JUDGMENT DATED 16.10.2023 IN
Annexure 4 TRUE COPY OF THE JUDGMENT DATED 30.09.2023 IN
APPENDIX OF BAIL APPL. 9834/2023
PETITIONER ANNEXURES
Annexure -I A TRUE COPY OF THE ORDER IN CRL.M.C NO.
2406/2023 DATED 25.08.2023 OF HON'BLE 1ST
ADDL. SESSIONS COURT
Annexure II A TRUE COPY OF THE ORDER IN CRL.M.C NO.
7338/2023 DATED 27.10.2023 OF THIS HON'BLE
COURT
Annexure III A TRUE COPY OF THE ORDER IN CRL.M.C NO.
1496/2022 FILED BY THE 1ST ACCUSED IN THE
ABOVE CRIME ON THE FILES OF THE A HON'BLE
DISTRICT AND SESSIONS COURT, ERNAKULAM DATED
04.07.2022
Annexure IV . A TRUE COPY OF THE ORDER IN CRL.M.C NO.
1402/2022 FILED BY THE 5TH ACCUSED IN THE
ABOVE CRIME ON THE FILES OF THE A HON'BLE
DISTRICT AND SESSIONS COURT, ERNAKULAM DATED
24.06.2022
Annexure V A TRUE COPY OF THE ORDER IN CRL.M.C NO.
1474 /2022 FILED BY THE 6TH ACCUSED IN THE
ABOVE CRIME ON THE FILES OF THE A HON'BLE
DISTRICT AND SESSIONS COURT, ERNAKULAM DATED
30.06.202
APPENDIX OF BAIL APPL. 9428/2023
PETITIONER ANNEXURES
Annexure 1 TRUE PHOTOCOPY OF THE CRIME AND OCCURRENCE
REPORT IN NDPS CR.NO. 38/2021 OF EXCISE RANGE
OFFICE, ERNAKULAM DATED 20.08.2021
