Noushar @ Noushad vs State Of Kerala

Mohammed Nias C.P., J.

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

The petitioner is the second accused in Crime No.352/2022 of Kuruppampadi Police Station, Ernakulam District, for having committed offences punishable under Sections 8(c) r/w Section 22(b)(ii) (C), 29 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The allegation against the petitioner is that on 15.04.2022 at about 2.55 p.m., on previous information, a tanker lorry bearing registration No.TN 52 A 9200, driven by accused No.1 was intercepted by the police and on searching the vehicle, 248.165 kilograms of ganja was seized from the secret chamber of the said lorry. Thereafter, on the basis of the confession, it is alleged that accused Nos.2,4,5 and 6 have spent a certain amount to purchase the contraband through accused No.3. and thereby committed the above offence.

Learned counsel for the petitioner submits that there was no seizure from the petitioner and that he was arrayed as an accused only on the basis of the confession. The other evidence relied on against the petitioner is of having transferred Rs.60,000/- to A1 and A8. He submits that the petitioner was arrested on 16.04.2022 and since there are no antecedents against him, and no proof of involvement, he may be enlarged on bail. Learned counsel for the petitioner argues on the basis of the judgment of this Court in BA No.2776/2023 that financial transaction alone cannot be put against the petitioner in the absence of any other proof for the sale and purchase of narcotic drugs. The learned counsel appearing for the petitioner would say that the petitioner is totally innocent and falsely implicated with ulterior motives. At any rate, he points out that the petitioner has been in custody since 16/04/2022, and continued custody of the petitioner is unnecessary.

Learned Public Prosecutor opposing the bail application submits that a huge quantity of Ganja was seized from A1, the bank transactions of the petitioner with A1, A3, A5, A6, A6, A7 and A8 clearly show his involvement. That apart, the wife of the petitioner had also transferred amounts to A8 a major provider of contraband. The chat history, voice messages, video clips and the UPI transactions clearly showed the involvement of the petitioner and he cannot be treated at par with the accused who were released on bail by this Court, in whose case the role alleged was considerably less. In the case of the petitioner, there was a direct transfer of money to the accused as aforesaid. It is also pointed out that the petitioner was convicted by the Judicial First Class magistrate Court-1, Chittur in Crime No.2/2021 registered by the Kollengode Excise Circle Office under Section 20(b) (ii)A under the provisions of the NDPS Act itself and therefore urged this Court to dismiss the bail application.

Considering the rival submissions and considering the circumstances, the fact that there are financial transactions between the petitioner and almost all other accused, even the wife of the petitioner had transferred amounts to A8, the major provider of contraband, the other evidence like chat history, voice messages, video clips, UPI transactions all shows the involvement of the petitioner and more importantly the petitioner has been convicted for an offence under the NDPS Act itself. Since commercial quantity is involved, the rigour of Section 37 of the NDPS Act applies and it has to be seen that both limbs of Section 37 are against the petitioner dis-entitling him to bail. It is made clear that the above observations are only for the purpose of considering the bail application and the trial court will consider the contentions of the petitioner on merits, without being swayed by any observations in this bail application.

Accordingly, the bail application is dismissed.