Ummer Farooq vs State Of Kerala

Dr.Kauser Edappagath, J

This is the second application for regular bail filed by the second accused in Crime No.426/2020 of Manjeshwar Police Station u/s 439 of Cr.P.C.

The offence alleged is under S.20(b)(ii) (c) of the NDPS Act.

The prosecution case in short is that, on 21/7/2020, at 13.35 hours, petitioner along with the first accused were found transporting 109.08 kgs of

Ganja in a pick up van bearing Regn.No.KA 188 5486 in contravention of the NDPS Act and Rules and thereby committed the offence.

Heard both sides and perused the case diary.

The learned counsel for the petitioner submitted that the petitioner is absolutely innocent and he has been falsely implicated in the present case. He

further submitted that there are no materials to connect the petitioner with the alleged crime and hence he is entitled to get bail. The learned Public

Prosecutor opposed the bail application. He contended that the alleged incident occurred as a part of the intentional criminal acts of the petitioner and

if the petitioner is released on bail at this stage, it would affect the course of investigation.

The petitioner was arrested on 29/1/2021 and since then, he is in custody. The case diary reveals that neither the petitioner nor the first accused

was arrested at the spot. The case of the prosecution is that the pick up van allegedly driven by the petitioner was intercepted by the police and the

petitioner as well as the first accused who were in the pick up van ran away. On search of the pick up van, the contraband articles were seized. It is

true that the quantity involved is huge. Since it is commercial quantity, the bail can be granted only on satisfaction of the two conditions under Section

37 of the NDPS Act.

The case records would show that during the course of investigation, the first accused was apprehended. He was given in police custody and during

the police custody, his confession statement was recorded. In the said confession, he stated about the involvement of the petitioner herein in the crime.

It was stated that he along with the petitioner transported the contraband article in the pick up van mentioned above. It was on the basis of the said

confession statement that the petitioner was arrayed as accused and he was arrested and remanded to judicial custody. After the petitioner was

arrested, he was also given in police custody and his confession statement also was recorded. In the said confession statement, there is nothing to

implicate him. Apart from the confession statement of the co-accused, in the investigation conducted so far, there is absolutely nothing to connect the

petitioner with the crime. The Supreme Court of India in Tofan Singh v. State of Tamil Nadu [2020 (5) KLT online 1042 (SC)] has held that any

confession statement made under Section 67 of the NDPS Act would be barred under Section 25 of the Evidence Act and cannot be relied on.

Apart from the confession statement, the prosecution relies on CDR of the mobile phone of the petitioner. It shows that during the period from

15.6.2020 to 17.6.2020 and thereafter from 13.7.2020 to 21.7.2020, the petitioner as well as the 1st accused were found in the very same tower

location. For the simple reason that the petitioner as well as the 1st accused were found in the very same tower location for some time, it cannot be

inferred that the petitioner was also involved in the offence. For these reasons, I am of the view that the embargo under Section 37 of the NDPS Act

would not be attracted. As stated already, the petitioner is in custody since 29.1.2021. He is a youngster aged 25 years. The investigation of the case

is almost over. Hence, I hold that the petitioner can be released on bail.

In the result, the application is allowed on the following conditions:-

(i) The petitioner shall be released on bail on executing a bond for `1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each

to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall fully co-operate with the investigation.

(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner

shall also appear before the investigating officer as and when required by him.

(iv) The petitioner shall not commit any offence of like nature while on bail.

(v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to

tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The petitioner shall not leave State of Kerala without the permission of the trial Court.