Harikrishnan M. vs State Of Kerala

Mohammed Nias C.P., J

This application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail.

The petitioner is arrayed as the 8th accused in O.R No.2/2023 of NCB, Cochin, for offences punishable under Sections 8(c) r/w 22(c), 25, 27A, 28 and 29 of the NDPS Act.

The prosecution case is that on 24.4.2023, a consignment from Gurugram, Haryana, reached Kadavanthra in favour of A1 and on a thorough investigation, it was found that A1 to A7 were involved in the dispatch and the transportation of LSD having 5.5 grams. Subsequent to that, A2, A3, A4, A5 and A6 were summoned, and A5 came along with A6 in his car. From this car, 80 grams of ganja was recovered by the NCB officers. Hence, a case under Section 8(c) r/w Sec. 22(c), 25, 27A, 28, and 29 of the NDPS Act was registered against the accused.

The learned counsel for the petitioner, Sri. T.D.Robin submitted that the confession obtained from the co-accused is hit by Section 25 of the Evidence Act and cannot be relied on. The Occurrence report states that though the investigation team had a drug detection kit with them to hold that the article was contraband, they used the confession of the co-accused, which is totally impermissible, and no steps were taken to expedite the testing process, which is mandated as per the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules 2022, in particular, Rule 14 which prescribes that the chemical laboratory shall submit its report to the court of Magistrate with a copy to the investigating officer within fifteen days from the date of receipt of the sample. It is also his argument that under Section 42, the original document had to be produced as mandated under Section 91 of the Evidence Act, as the information within the meaning of Section 42 has to be in writing. He also argues that the seizure was on 24.4.2023, and the petitioner, in this case, was arrested on 25.5.2023. He also argues that there are no other antecedents against the petitioner and that he has a graduation in Hotel Management .A6 and the petitioner are classmates and friends who wanted to start a homestay at Kasol, and funds were transferred by the petitioner as part of the investment.

The respondent has filed an objection in the bail application filed by the 8th accused. It is stated that “during the course of the investigation, the undersigned found that the petitioner had deposited money for trafficking the seized drug. On 23.05.2023, he was summoned, and his voluntary statement was recorded. On the basis of his voluntary statement under Section 67 of the NDPS Act, 1985, other accomplice’s statements and incriminating documents and material evidence collected against Hari Krishnan was placed under arrest on 25.05.2023 under Section 8(c) r/w 22(c), 25, 28 and 29 of the NDPS Act, 1985 as amended.” It is also pointed out that the 8th accused is already involved in another NDPS case, Crime No.489 of 2020, registered at Ernakulam Rural Changamanad Police Station.

Considering the rival contentions, a few facts are to be noticed, and they are that no seizure has been effected from the petitioner, as is evident from the occurrence report, despite having a drug detention with him, the officials at the time of seizure mention in the occurrence report that the drug is contraband on the basis of the confession of the accused. The said confession cannot be held to be admissible, and more so when the element of possession of contraband by the accused is the foundation of the prosecution. The occurrence report does not bear a date, and neither the date nor place is mentioned in the occurrence report about the subsequent summoning of the other accused after the seizure from A1, that the reliance by the prosecution is more on the confession statements of the co-accused, that the phone calls and the financial transactions are between the accused who even the prosecution would say are having a close relationship with each other. The delay in sending the contraband for analysis and getting a report within the time granted in the rules also has to be held against the prosecution at this stage. I also cannot lose sight of the fact that the petitioner is young with good academic records. After the first accused's seizure, the officer summoned all the other accused one by one. The above facts certainly reveal doubt from the stage of seizure onwards, at least ex-facie.

With respect to the antecedent pointed out by the respondent, the learned counsel for the petitioner would submit that there was a false accusation against the petitioner that led to crime No.489/2020 of Changamanad police station under Section 20(ii)A of the NDPS Act. The learned counsel submits that the same is evident from the fact that the petitioner pleaded guilty based on wrong advice and was convicted for the offence under Section 255(2) of the Cr.P.C. and sentenced to pay a fine of Rs.3,000/-. The judgment dated 13.7.2021 in CC No.1091/2020 is produced along with the memo. On going through the aforesaid judgment, I am inclined to accept the version suggested by the learned counsel for the petitioner as regards the circumstances of the earlier case leading to the judgment mentioned above.

Under such circumstances, I am of the view that the petitioner would satisfy both the limbs of Section 37 of the NDPS Act and that his further incarceration is not warranted. The petitioner is in custody from 25.05.2023 onwards. The prosecution also does not doubt the possibility of securing the petitioner's presence at the time of trial. Accused Nos. 2 and 7 were already enlarged on bail by orders of this Court in B.A.Nos. 5056/2023 & 5302/2023 dated 25-09-2023. Needless to say, the trial will have to be conducted independently on its merits, without being influenced by any observations expressed in this order.

In the result, the bail application will stand allowed, and the petitioner is enlarged on bail on the following conditions:-

The petitioner shall be released on bail on 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; one of the sureties shall be a parent or close relative of the petitioner;

He shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m. for three months or till the final report is filed, whichever is earlier;

He shall not intimidate or attempt to influence the witnesses, nor shall he tamper with the evidence;

He shall not commit any offence while on bail;

He shall not leave the State of Kerala without the permission of the Court having jurisdiction;

He shall not leave India without the permission of the jurisdictional Court and, if he has passport, shall deposit the same before the Trial Court within a week. If the release of the passport is required at a later period, the petitioner shall be at liberty to move appropriate application for the same before the Court having jurisdiction.

The petitioner shall furnish his present address along with his mobile phone number to the Court concerned as well as to the investigating officer.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail and pass appropriate orders, in accordance with law.