Abu Tahir vs State Of Kerala

Gopinath P., J

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).

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.

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 7th 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 7th 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 5th 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.

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.

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.