Kerala High Court
Arjun vs State Of Kerala on 11 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
BAIL APPL. NO. 1571 OF 2024
CRIME NO.1/2023 OF NARCOTICS CONTROL BUREAU, KOCHI, Ernakulam
PETITIONER/S:
JENNIFFAR LEPONDING DICONYA,
AGED 30 YEARS
D/O LEPONDING,FLAT NO. 515, 5TH FLOOR, JR ARCADE,
BANGALORE, KARNATAKA STATE, PIN - 560003
BY ADV P.M.UNNI NAMBOODIRI
RESPONDENT/S:
STATE OF KERALA,
1 REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
THE DEPUTY SUPERINTEND OF POLICE,
NARCOTIC CELL,4924+5V3, ALUVA, ERNAKULAM, KERALA -
2
683101 IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED
13/03/2024 IN CRL.MA. 1/2024.
BY ADVS.
No Advocate
SRI.RAJAGOPALAN NAIR.K.R., CGC
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
11.04.2024, ALONG WITH Bail Appl..1729/2024, 2356/2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1571 OF 2024 & connected cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
BAIL APPL. NO. 1729 OF 2024
CRIME NO.1/2023 OF NARCOTICS CONTROL BUREAU, KOCHI,
Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.7624 OF
2023 OF HIGH COURT OF KERALA
PETITIONER/S:
ARJUN,
AGED 25 YEARS
S/O. SASIDHARAN, EERAZHITAVADETHAZHEKKUNNU HOUSE,
KACHERI P.O., KOZHIKODE DISTRICT, PIN - 673006
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
RAYEES P.
ALWIN JOSEPH
RESPONDENT/S:
STATE OF KERALA,
1 REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
BAIL APPL. NO. 1571 OF 2024 & connected cases
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INTELLIGENCE OFFICER,
2 NARCOTIC CONTROL BUREAU, ZONAL UNIT, KOCHI, PIN -
682030
BY ADV SRI.RAJAGOPALAN NAIR.K.R., CGC
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
11.04.2024, ALONG WITH Bail Appl..1571/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1571 OF 2024 & connected cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
BAIL APPL. NO. 2356 OF 2024
CRIME NO.1/2023 OF NARCOTICS CONTROL BUREAU, KOCHI,
Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.1395 OF 2023 OF
SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI
PETITIONER/S:
SHERIN N.S,
AGED 36 YEARS
S/O.SURENDRANATH N.M, NAISSERIYIL HOUSE
"SREEVALSAM", ONIYAPALAM, VALANCHERI P.O,
KATTIPPARUTHI, MALAPPURAM DISTRICT, PIN - 676552
BY ADV NIREESH MATHEW
RESPONDENT/S:
UNION OF INDIA,
REP. BY INTELLIGENCE OFFICER,NARCOTICS CONTROL
BUREAU, ZONAL UNIT, COCHIN, REPRESENTED BY THE
SPECIAL PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY ADV SRI.RAJAGOPALAN NAIR.K.R., CGC
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
11.04.2024, ALONG WITH Bail Appl..1571/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1571 OF 2024 & connected cases
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MOHAMMED NIAS C.P, J.
========================
B.A. Nos. 1571, 1729 & 2356 of 2024
========================
Dated this the 11th day of April, 2024
ORDER
These bail applications are filed under Section
439 of the Code of Criminal Procedure seeking regular bail.
2. BA No. 1729 of 2024 is the second application
filed by the 2nd accused, BA No.2356 of 2024 is the second
application filed by the 3rd accused and BA No. 1571 of
2024 is the first application filed by the 5th accused in
Crime No. 1 of 2023 of Narcotics Control Bureau, Kochi,
registered for offences punishable under Sections 22 (c)
and 29 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short ' the Act').
3. The prosecution allegation is that on 30.03.2023
at 9.00 a.m., based on information received by NCB search
BAIL APPL. NO. 1571 OF 2024 & connected cases
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was conducted at the DTDC Express Limited, Vengara,
Malappuram and found that 99 grams of Amphetamine was
received as a courier parcel and the contraband article was
transported by the petitioners in conspiracy which one
Abdul Jalee, and thereby committed the above offence.
4. The earlier bail applications of the 2nd and 3rd
accused were rejected by an order in B. A No. 7624 & 8737
of 2023 dated 15.12.2023, finding the involvement of the
petitioner and taking note of the fact that commercial
quantity is involved, inviting the rigour under Section 37 of
the NDPS Act.
5. In these applications, the essential contention
raised by the learned counsel for the petitioners is that
there is a violation of Section 52A of the Act, and also the
Narcotic Drugs and Psychotropic Substances (seizure,
storage, sampling and disposal), Rules, 2022 (for short
'Rules 2022')regarding the sampling of the contraband.
They contend that since there was an infraction of the
above provisions which are mandatory, the petitioners are
BAIL APPL. NO. 1571 OF 2024 & connected cases
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entitled to bail.
6. The learned counsel for the respondent has filed
an objection, which notices the mahazar prepared on
30.03.2023 that states as follows;
" Then Sh. Abhilash C G, Junior Intelligence Officer cut the
transparent Adhesive Tape and opened the parcel, the said
parcel contained the following items: -
1. A torn brown colored paper bag with a logo of Blinkit-01
No.
2. A transparent plastic cover with a sticker of milk rusk-01
No.
3. A torn white color polythene cover containing some
substance.
Then Sh. Abhilash CG, Junior Intelligence Officer took the
aforesaid torn white color polythene cover and was found
some substance wrapped inside it which led him to suspicion
then he opened the white color polythene cover and found
one transparent Plastic Zip lock Pouch containing some off-
white color crystalline substance and one semitransparent
polythene pouch containing some off-white crystalline
substance. Then Sh. Abhilash CG, Junior Intelligence
Officer opened the semitransparent Plastic Pouch and took a
pinch of the off-white color crystalline substance and tested
BAIL APPL. NO. 1571 OF 2024 & connected cases
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with the help of Drug Detection kit which was brought by
the NCB team and the test showed positive result for
Amphetamine. After that, Sh. Abhilash CG, Junior
Intelligence Officer took the semitransparent polythene
pouch and weighed the same using the weighing machine
brought by the NCB team. It was found weighed 50 grams
(including semitransparent polythene plastic pouch) then Sh.
Abhilash C G. Junior Intelligence Officer opened the
transparent Plastic Zip lock Pouch and took a pinch of the
off-white color crystalline substance and tested with the help
of Drug Detection kit which was brought by the NCB team
and the test showed positive result for Amphetamine Then
Sh. Abhilash C G, Junior Intelligence Officer, took the
transparent Plastic Zip lock Pouch and weighed the same
using the weighing machine brought by the NCB team. It
was found weighed 49 grams (including the transparent
Plastic Zip lock Pouch).
Therefore, the total weight of the contraband in 02 packets
came out to be 99 grams. Then, with reason to believe that,
the entire substance is Amphetamine, Sh. Abhilash C G,
Junior Intelligence Officer put all the off-white color
crystalline substance purported to be Amphetamine into a
big transparent polythene Zip lock pouch and shook the big
transparent polythene zip lock pouch left to right and bottom
to top well in order to homogenous the off white colour
BAIL APPL. NO. 1571 OF 2024 & connected cases
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crystalline substance purported to be Amphetamine. Before
this, the empty big transparent polythene Zip lock pouch was
weighed and its weight was 5 grams.
After that, the big transparent polythene Zip lock pouch
containing the 99 grams off-white color crystalline substance
purported to be Amphetamine was heat sealed and kept in a
medium sized green colour cloth lined envelope, pasted, wax
sealed with NCB seal and marked as P-1."
7. It is the said submission that the sampling of
them in the instant case is in terms of Rules 3(2) and 10 of
the Rules 2022, which are as follows;
" (2) if the narcotic drugs, psychotropic substances and
controlled substances are found in packages or containers.
Such packages and containers shall be weighed separately
and serially numbered for the purpose of identification.
Rule 10. Drawing the samples (1) On sample, in duplicate,
shall be drawn from each package and container
seized.
(2) When the packages and containers seized together are of
identical size and weight bearing identical marking and the
contents of each package give identical results on colour test
by the drugs identification kit, conclusively indicating that the
BAIL APPL. NO. 1571 OF 2024 & connected cases
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packages are identical in all respects, the packages and
containers may carefully be bunched in lots of not more than
ten packages or containers, and for each such, lot of
packages and containers, one sample, in duplicate, shall be
drawn:
Provided that in the case of ganja, poppy straw and hashish
(charas) it may be bunched in lots of not more than fourty
packages or containers.
(3) In case of drawing sample from a particular lot, it shall be
ensured that representative sample in equal quantity is taken
from each package or container of that lot and mixed
together to make a composite whole from which the samples
are drawn for that lot."
8. It is their submission that when the packages and
containers seized together are of identical size and weight
and bearing identical markings, and when the contents of
each package give identical results on colour test by the
drugs identification kit, conclusively indicating that the
packages are identical in all respects, the packages and the
containers may carefully be bunched in lots of not more
than ten packages or containers, and for each such, lot of
BAIL APPL. NO. 1571 OF 2024 & connected cases
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packages and containers, one sample, in duplicate, shall be
drawn.
9. Taking note of the statement and the mahazar, it
is clear that the contraband was kept in a packet, which
contained two separate boxes. It is also to be noted that the
officer opened the semi-transparent plastic zip lock pouch
and took a pinch of the off-white colour crystalline
substance and tested it with the help of a Drug Detection
Kit and the test showed a positive result for Amphetamine.
How the sampling was done as seen from the mahazar
leads me to the conclusion that there was no infraction of
the rules in question. This being a bail application, any
further probe into this will certainly affect either the
accused or the prosecution. These are all matters to be
ultimately proved in the trial. There is no change in
circumstances for granting bail to the 2nd and 3rd accused.
Accordingly, their bail applications are rejected.
10. As against the 5th accused, who filed the bail
application, the counter filed by the respondent clearly
BAIL APPL. NO. 1571 OF 2024 & connected cases
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shows that there are three bank accounts that the accused
used for transactions made between the accused Nos.3, 4
and 9. It is also to be noted that accused Nos. 6 to 9 are
absconding. Under such circumstances, granting bail to the
5th accused certainly will impair a proper investigation.
11. A report was called for from the court concerned,
as to the probable time required for the completion of trial.
It is stated in the report dated 04.04.2024, that A1 to A5 are
in judicial custody and A6 to A9 are absconding. The
process under Sections 82 and 83 of Cr. P.C was taken as
against A6 to A9 and now the case stands posted to
31.05.2024 for return/execution of process. It is pointed out
that even if the case is split up the case against A6 to A9 on
02.05.2024, the case against A1 to A5 can be disposed of
within six months from 04.04.2024. The timeline indicated
in the report is recorded. Accordingly, even as I dismiss the
bail applications, there will be a direction to complete the
trial as against A1 to A5 within the time stated in the report
filed by the court concerned. In case, the trial is not
BAIL APPL. NO. 1571 OF 2024 & connected cases
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completed within the time indicated in the aforesaid report
and the delay is not attributable to the petitioners, it will be
open to the petitioner to approach the court concerned,
seeking bail.
Subject to the above, the applications are
dismissed.
Sd/-
MOHAMMED NIAS C.P
JUDGE
LU
BAIL APPL. NO. 1571 OF 2024 & connected cases
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APPENDIX OF BAIL APPL. 1729/2024
PETITIONER ANNEXURES
ORDER DATED 15-12-2023 IN BAIL
Annexure 1
APPL.7624/2023 ON HIGH COURT
TRUE COPY OF THE REMAND REPORT OF THE
Annexure 2 PETITIONER IN O.R. NO. 1/2023 OF NCB,
KOCHI
TRUE COPY OF THE OCCURRENCE REPORT IN
Annexure 3
O.R. NO. 1/2023 OF NCB, KOCHI
TRUE COPY OF THE SEIZURE MAHAZAR IN
Annexure 4
O.R. NO. 1/2023 OF NCB, KOCHI
TRUE COPY OF THE ORDER DATED 22.05.2023
Annexure 5 IN CRL.M.P. NO. 1156/2023 PASSED BY THE
HONORABLE SPECIAL COURT, MANJERI
BAIL APPL. NO. 1571 OF 2024 & connected cases
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APPENDIX OF BAIL APPL. 2356/2024
PETITIONER ANNEXURES
TRUE PHOTOCOPY OF THE OCCURRENCE REPORT
IN OR.NO.1/2023 OF NARCOTICS CONTROL
Annexure 1
BUREAU, ZONAL UNIT, COCHIN DATED
31.03.2023
TRUE PHOTOCOPY OF THE COMMON ORDER
DATED 22.05.2023 IN CRL.MP.NO.1186/2023
Annexure 2
PASSED BY THE SPECIAL COURT FOR SC/ST
(POA) ACT & NDPS ACT CASES, MANJERI
TRUE PHOTOCOPY OF THE ORDER DATED
Annexure 3 15.12.2023 IN B.A.NO.8737/2023 PASSED
BY THIS HON'BLE COURT.
BAIL APPL. NO. 1571 OF 2024 & connected cases
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APPENDIX OF BAIL APPL. 1571/2024
PETITIONER ANNEXURES
THE TRUE COPY OF THE ORDER DATED
Annexure 1
21.10.2023 IN CRL MP NO. 2256/2023
THE TRUE COPY OF THE ORDER DATED
Annexure 2
01.12.2023 IN CRL MP NO. 2382/2023
