Shefin Noushad vs State Of Kerala

Mohammed Nias C.P., J

These applications are filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail.

The petitioner in BA No.5056/2023 is the 2nd accused in OR 2/2023 of NCB, Cochin, for the offences punishable under Section 8(c) r/w 20(b)(ii) (A), 22(c), 25, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act). In B.A.No.5302/2023, the petitioner is arrayed as the 7th accused in O.R.No.2/2023 of the NCB, Cochin, registered alleging offences punishable under Section 8(c) r/w 20(b)(ii)(A), 22(c), 25, 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 persons.

The learned counsel for the petitioner in B.A.No.5056/2023 submits that the alleged contraband was seized on 24.04.2023 but was produced before the Jurisdictional Court only on 03.05.2023 and there occurred a delay of almost ten days in producing the alleged contraband before the jurisdictional court, which is left unexplained by the prosecution. There is no material to show that this petitioner has prior knowledge about the parcel or the illegal activities done by Joel Jiju. There is no material to show that this petitioner is a party to criminal conspiracy or he has abetted or attempted to commit any offence, and as such, the alleged offences under Section 29 will not lie against the petitioner. He further submits that in the occurrence report, it is made clear that all the investigation with respect to the petitioner in the above case is completed. The petitioner was arrested on 26.04.2023. The custodial interrogation of the petitioner is over in this case. The petitioner has no criminal antecedents.

The learned counsel for the petitioner in B.A.No.5302/2023, Sri Babu .S.Nair submits that there was no seizure at all from the petitioner and that the parcel, which was booked from Gurugram, Haryana, by speed post with destination shown at Kadavanthra, Kerala did not show the name of the petitioner as the sender or the addressee. The front side of the envelope showed one Roshan George as the sender, addressed to one John Hrithik. The contraband was seized from John Hrithik, and the officer summoned the other accused, A2 to A6. There was a seizure from the car in which A5 came along with A6. The alleged role mentioned against the petitioner is that he was the one who arranged the contraband. It is submitted that there was no material at all to connect him with the crime except the confession statements under Section 67 of the NDPS Act of the co-accused. He further submits that the petitioner was arrested on 25.5.2023 and is a person with no criminal antecedents. The learned counsel also submits that the petitioner is a 22-year-old boy who completed his degree in Business Administration in December 2022 from James Cook University in Singapore with distinction. He was also a very meritorious student, having secured more than 90% marks in the X and the XII examinations, and since March 2022, he has been doing an internship in Bombay. He submits that the other accused are all his friends. It is also his submission that there is a flagrant violation of Sections 42 and 50 of the NDPS Act as regards the seizure. It is also his argument that the occurrence report, in this case, did not even bear a date, and it was on call from the officers that the other accused were summoned and roped in the crime. He also cited decisions of this Court in Basant Balram v. State of Kerala (2019 ICO 41) and Muhammed Ameen v. Narcotic Control Bureau Cochin (2020 ICO 99) to buttress his contentions.

The learned counsel for the petitioners, apart from reiterating the contentions noticed above on facts, argued that there was no compliance with Section 42, which is mandatory. He submits that there was no document to show that the officer who received the information reduced the same in writing, recorded the grounds for his belief under the proviso and intimated the same within 72 hours to his immediate official superior. In the instant case, there was no such compliance and violation of Section 42 is a matter which can be urged in a bail application. He also argues that the confession statement could not have been relied on in view of the law laid down by the Supreme Court in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1]. The other evidence allegedly connecting the petitioner is weak and totally unreliable. He also argues that there was no contention raised on the basis of Section 42 regarding the illegality in placing reliance on the confession statements when this Court considered the bail application of the fifth accused in BA 4569/2023. The learned counsel also argues that the fifth accused had transactions with the sixth accused and not with the seventh accused, the petitioner herein. Even otherwise, as alleged by the prosecution, all the petitioners were close friends, and the financial transactions between friends cannot be termed conspiracy to commit an offence under the NDPS Act.

The learned counsel for the respondent opposing the bail contended that it was on the basis of the material evidence substantiating their involvement, along with the confession statement, that the petitioners were arrested on 26.4.2023 and 25.5.2023. It is his further submission that on 20.5.2023, while the 7th accused tried to evade arrest and flee away from the country when one of the petitioners was apprehended at the Mumbai Airport, he was summoned at the statement recorded, and his voluntary statement accepted his involvement in the drug trafficking, and accordingly he was arrested on 21.5.2023. It is also the contention that accused Nos.1 to 3, 5 and 6 had a lot of monetary transactions with A7 on whose direction accused 1 to 4 was consciously involved in the drug trafficking, which led to their arrest. The CDR and the WhatsApp chats of the petitioner proved the same that all the accused had a close relationship with each other and that between the petitioner and John Hrithik, there were 184 bank transactions. Lastly, it is argued that the seized contraband is of commercial quantity and, therefore, going by Section 37 of the NDPS Act, the petitioners are not entitled to bail. The learned counsel for the respondent also brings to my notice the order of this Court in BA 4569/2023 wherein the application of the fifth accused, Jacob George, was rejected.

Considering the rival contentions, a few facts are to be noticed, and they are that no seizure has been effected from the petitioners, as is evident from the occurrence report, despite having a drug detention with them, 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, that there is no criminal antecedent against the petitioners. 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 petitioners are young with good academic records. All the other accused were summoned one by one by the officer after the seizure from the first accused. A consideration of all the above facts as noticed above certainly reveals doubt from the stage of seizure onwards, at least ex facie.. The facts and circumstances narrated above are sufficient to justify the satisfaction that the accused are not guilty of the alleged offences at this stage. The prosecution has no case that the petitioners had any criminal antecedents or were involved in similar offences earlier. I am, prima facie, satisfied that there are serious doubts concerning the involvement of the petitioners for the limited purpose of consideration of this application.

Under such circumstances, I am of the view that the petitioners in these cases would satisfy both the limbs of Section 37 of the NDPS Act and that the petitioners’ further incarceration is not warranted. The petitioners are in custody from 26.04.2023 and 25.05.2023, respectively. The prosecution also does not have a doubt about the possibility of securing the presence of the petitioners at the time of trial. Therefore, the petitioners can be enlarged on bail based on the conditions below stated. 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, BA Nos.5056/2023 and 5302/2023 will stand allowed, and the petitioners are enlarged on bail on the following conditions:-

i. The petitioners shall be released on bail on executing separate bonds for Rs.1,00,000/- (Rupees One lakh only) each 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 petitioners;

ii. They 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;

iii.They shall not intimidate or attempt to influence the witnesses, nor shall they tamper with the evidence;

iv. They shall not commit any offence while on bail;

v. They shall not leave the State of Kerala without the permission of the Court having jurisdiction;

vi.They shall not leave India without the permission of the jurisdictional Court and, if they have passports, shall deposit the same before the Trial Court within a week. If the release of the passports is required at a later period, the petitioners shall be at liberty to move appropriate applications for the same before the Court having jurisdiction.

vii.The petitioners shall furnish their present address along with their mobile numbers to the Court concerned as well as to the investigating officer.

viii.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.