Kerala High Court

Mohammed Anwar @ Anwar vs Union Of India on 1 November, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 7192 OF 2024



                              1
                                               2024:KER:81146

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

              THE HONOURABLE MR.JUSTICE C.S.DIAS

FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946

                 BAIL APPL. NO. 7192 OF 2024

        CRIME NO.7/2005 OF NARCOTIC CONTROL BUREAU,

          THIRUVANANTHAPURAM, THIRUVANANTHAPURAM

      AGAINST THE ORDER/JUDGMENT DATED IN SC NO.188 OF 2019

    OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,

        KASARAGOD / II ADDITIONAL MACT, KASARAGODE

PETITIONER:

         MOHAMMED ANWAR @ ANWAR,
         AGED 44 YEARS
         S/O. KHAJU MOHAMMED, RESIDING AT BHAGILYA
         VILLAGE, BAGARIYA POST, PRATHAPARGARH,
         RAJASTHAN,, PIN - 312605


         BY ADV NIREESH MATHEW
RESPONDENT:

         UNION OF INDIA,
         REP. BY INTELLIGENCE OFFICER, NARCOTICS CONTROL
         BUREAU, REGIONAL INTELLIGENCE UNIT,
         THIRUVANANTHAPURAM, REPRESENTED BY THE SPECIAL
         PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.,
         PIN - 682031

         BY ADV R.VINU RAJ, SPL. P. P. NARCOTICS CONTROL
         BUREAU
 BAIL APPL. NO. 7192 OF 2024



                                 2
                                                    2024:KER:81146

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

01.11.2024,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE

FOLLOWING:
 BAIL APPL. NO. 7192 OF 2024



                               3
                                                2024:KER:81146




                           ORDER

Dated this the 1st day of November, 2024

The application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (for short

'BNSS'), by the 4th accused in O.R.No.7 of 2005 of the

Narcotic Control Bureau, Regional Intelligence Unit,

Thiruvananthapuram, which is registered against four

accused persons for allegedly committing the offences

punishable under Sections 8(c) r/w. 21(c), 27A, 28 and

29 of the Narcotic Drugs and Psychotropic Substances

Act, 1985. The petitioner was remanded to judicial

custody on 19.7.2024.

2. The prosecution case, in brief, is that:

on 19.11.2005, at 6:20 hours, the Detecting Officer,

received a secret information that the accused 1 and 2

in the crime were dealing with psychotropic

substances. Accordingly, they conducted a body search BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

on the accused 1 and 2 and they recovered 710 grams

of Heroin from the hand bag and sandals of the 1 st

accused. During the course of the investigation, and

the interrogation of the accused 1 and 2, it was learnt

that the accused 3 and 4 had hatched a conspiracy

with the accused 1 and 2, and the 2 nd accused gave

financial assistance to the 1st accused to purchase the

contraband substance from the accused 3 and 4. Thus,

the accused have committed the above offences.

3. When the application came up for

consideration on 10.10.2024, this Court had called for

a report from the Court of Session, Kasargod, (Trial

Court) to ascertain as to whether any warrant was

issued to the petitioner at the investigation stage or at

the trial stage in the present crime.

4. Pursuant to the said order, the learned

Additional Sessions Judge II, Kasargod (Trial Court) by

communication dated 18.10.2024, has informed this

Court that no arrest warrant was issued against the BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

petitioner during the investigation stage. The

Investigating Officer has filed an absconding charge

sheet stating that the petitioner's whereabouts were

not found. However, warrants were issued against the

petitioner in S.C.No.247/2007 after the first accused

was convicted, and the case against the petitioner was

split up.

5. Heard; Sri.Nireesh Mathew, the learned

counsel appearing for the petitioner and Sri.R. Vinu

Raj, the learned Special Public Prosecutor.

6. The learned counsel for the petitioner

submitted that the petitioner is totally innocent of the

accusations leveled against him. There is no material to

substantiate the petitioner's culpability in the crime.

The petitioner has been implicated in the case solely on

the basis of a confession statement of the 1 st accused,

which is inadmissible in evidence, in view of the law

laid down by the Hon'ble Supreme Court in Tofan BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

Singh vs. State of Tamilnadu [2020 (6) KHC 111]. The

petitioner was totally unaware of the pendency of the

crime. It is 19 years after the alleged incident that the

petitioner was arrested by the Investigating Officer.

The investigating officer has filed an absconding

charge sheet against the petitioner. There was no

effort made by the Investigating Officer to trace out

the petitioner or serve any notice/summons/warrant on

him. It is after the accused 1 and 2 have been

convicted, now the petitioner has been arrested. The

petitioner is a law abiding citizen without any criminal

antecedents. The petitioner has been in judicial

custody for the last three months, there is no likelihood

of the petitioner being convicted, since he is implicated

solely on the basis of a confession statement. Hence,

the application may be allowed.

7. The learned Public Prosecutor opposed

the application. He submitted that it was a great effort

that the petitioner was arrested from the State of BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

Rajasthan. Since, the petitioner could not be traced

out, an absconding charge sheet was filed before the

trial court. The 1st accused was convicted and the 2 nd

accused was acquitted. However, this court

subsequently convicted the 2nd accused. The 3rd

accused is still at large. If the petitioner is enlarged on

bail at this stage, he may abscond and the trial in the

case will get further procrastinated. The contraband

involved in this case is of a commercial quantity,

therefore, the rigour under Section 37 of the Act

applies to the facts of the case. There is no reasonable

ground to hold that the petitioner has committed the

above offence. Therefore, the application may be

dismissed.

8. The prosecution allegation, is that, the 1 st

accused was found in conscious possession of 710

grams of Heroin. He was arrested on the spot on

19.11.2005. During his interrogation, he confessed that

the 2nd accused had given him financial support to BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

procure the contraband from the accused 3 and 4. It is

on the basis of his confession statement, that the

petitioner has been implicated as an accused in the

crime.

9. Indisputably, prima facie, there is no

material to show that the petitioner was issued with

any notice, summons or warrant to procure his

presence. The Investigating Officer had filed an

absconding charge sheet against the petitioner. The

trial in the case progressed and the 1 st accused was

convicted and 2nd accused was acquitted.

Subsequently, it is reported that 2nd accused was also

convicted by this Court. It is after 19 years that the

petitioner has been arrested on the allegation that he

had conspired with the accused 1 and 2 to sell the

contraband substances to the accused 1 and 2.

10. On a prima facie appreciation of the

materials on record, it is seen that the petitioner has

been implicated in the crime solely on the basis of a BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

confession statement of the 1st accused.

11. It is well settled in Tofan Singh's case

(Supra) that a confession statement of a co-accused is

inadmissible evidence and the same is not sufficient to

implicate a person as an accused in a crime under the

NDPS Act.

12. True, the contraband involved in the case is

of a commercial quantity and the rigour under Section

37 of the Act applies to the facts of the case. However,

taking into account the peculiar facts and

circumstances of the case, and that the petitioner has

been implicated solely on the basis of the confession

statement of the 1st accused, that the petitioner was

not served with any notice/summons/warrant during

the crime stage, and it was while the case was pending

in the Long Pending Register, a warrant was issued

against the petitioner in July 2024, and he was arrested

and remanded to judicial custody. Therefore, I find that

there are reasonable grounds to hold that the BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

petitioner has not committed the offences alleged

against him and is not likely to commit the offences if

he is enlarged on bail. Hence, I hold that the petitioner

had diluted the rigour under Section 37 of the Act.

13. On an anxious consideration of the facts

and circumstances of the case on hand, the rival

submissions made across the Bar, the law referred in

the above cited decision and for the reasons already

mentioned above, I am satisfied that the petitioner is

entitled to be released on bail.

In the result, the application is allowed, by

directing the petitioner to be released on bail on him

executing a bond for Rs.1,00,000/- (Rupees One lakh

only) with two solvent sureties each for the like sum, to

the satisfaction of the court having jurisdiction, which

shall be subject to the following conditions:

(i) The petitioner shall appear before the Trial

Court as and when directed;

(ii) The petitioner shall not directly or indirectly BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

make any inducement, threat or procure to any person

acquainted with the facts of the case so as to dissuade

him from disclosing such facts to the court or to any

Police Officer or tamper with the evidence in any

manner, whatsoever;

(iii) The petitioner shall not commit any offence

while he is on bail;

(iv) The petitioner shall surrender his passport,

if any, before the court below at the time of execution

of the bond. If he has no passport, he shall file an

affidavit to the effect before the court below on the

date of execution of the bond;

(v) In case of violation of any of the conditions

mentioned above, the jurisdictional court shall be

empowered to consider the application for cancellation

of bail, if any filed, and pass orders on the same, in

accordance with law.

(vi) Applications for deletion/modification of the

bail conditions shall be filed and entertained before the BAIL APPL. NO. 7192 OF 2024

2024:KER:81146

jurisdictional court;

(vii) Needless to mention, it would be well

within the powers of the Investigating Officer to

investigate the matter and, if necessary, to effect

recoveries on the information, if any, given by the

petitioner even while the petitioner is on bail as laid

down by the Hon'ble Supreme Court in Sushila

Aggarwal v. State (NCT of Delhi) and another [2020 (1)

KHC 663].