Kerala High Court
Superintendent Of Customs vs Ahammed Kabir on 20 November, 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941
Crl.MC.No.7416 OF 2019(F)
AGAINST THE ORDER IN CRMC 256/2019 DATED 07-02-2019 SESSIONS
COURT, ERNAKULAM
O.R.NO.38/2019 OF AIR INTELLIGENCE UNIT, NEDUMBASSERY U/S NDPS
ACT, 1985
PETITIONER/COMPLAINANT:
SUPERINTENDENT OF CUSTOMS
AIR INTELLIGENCE UNIT, COCHIN INTERNATIONAL AIRPORT,
COCHIN, REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR,
CUSTOMS AND CENTRAL EXCISE.
BY ADV. SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR
CUSTOMS,COCHIN COMMISSIONERATE
RESPONDENT/ACCUSED NO.2:
AHAMMED KABIR,
AGED 24 YEARS
S/O AHAMMED RAHMAN, NELLIPARAMBIL HOUSE, VELLARAKKAD
P.O.ERUMAPETTY VIA THIRSSUR.
R1 BY ADV. SRI.V.C.MADHAVANKUTTY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.11.2019, ALONG WITH Crl.MC.7418/2019(F), Crl.MC.7419/2019(F),
Crl.MC.7423/2019(G), Crl.MC.7428/2019(G), THE COURT ON 20.11.2019
PASSED THE FOLLOWING:
Crl.M.C.Nos.7416/2019
7418/2019, 7419/2019,
7423/2019 & 2
7428/2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA,
1941
Crl.MC.No.7418 OF 2019(F)
AGAINST THE ORDER IN CRMC 800/2019 DATED 20-04-2019
SESSIONS COURT, ERNAKULAM
O.R.NO.38/2019 OF AIR INTELLIGENCE UNIT, NEDUMBASSERY U/S
8(c), 23(c), 27A, 28, 20(b) r/w Sec.29 NDPS ACT.1985
PETITIONER/COMPLAINANT:
SUPERINTENDENT OF CUSTOMS
AIR CUSTOMS COCHIN INTERNATIONAL AIRPORT,
COCHIN, REPRESENTED BY THE SPECIAL PUBLIC
PROSECUTOR AIR CUSTOMS.
BY ADV. SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR
CUSTOMS,COCHIN COMMISSIONERATE
RESPONDENT/ACCUSED NO.1:
MUBASHIR
AGED 22 YEARS
S/O.BASHEER, PATTAYIL HOUSE, KOONDMAU, PUTHAR
PALLIKKAL P.O., MALAPPURAM DISTRICT-673653.
R1 BY ADV. SRI.P.MOHAMED SABAH
R1 BY ADV. SMT.SAIPOOJA
R1 BY ADV. SMT.A.GOWRI NAIR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.11.2019, ALONG WITH Crl.MC.7416/2019(F),
Crl.MC.7419/2019(F), Crl.MC.7423/2019(G),
Crl.MC.7428/2019(G), THE COURT ON 20.11.2019 PASSED THE
FOLLOWING:
Crl.M.C.Nos.7416/2019
7418/2019, 7419/2019,
7423/2019 & 3
7428/2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA,
1941
Crl.MC.No.7419 OF 2019(F)
AGAINST THE ORDER IN CRMC 1730/2019 DATED 02-08-2019
SESSIONS COURT, ERNAKULAM
O.R.NO.38/2019 OF AIR INTELLIGENCE UNIT, NEDUMBASSERY U/S
8(c), 23(c), 27A, 28, 20(b) r/w Sec.29 NDPS ACT.1985
PETITIONER/COMPLAINANT:
SUPERINTENDENT OF CUSTOMS,
AIR INTELLIGENCE UNIT, COCHIN INTERNATIONAL
AIRPORT, NEDUMBASSERRY , REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR.
BY ADV. SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR
CUSTOMS,COCHIN COMMISSIONERATE
RESPONDENT/ACCUSED NO.6:
HARIS U.T.,
S/O JAMAL, ULLATTIL HOUSE, MANJERI DISTRICT-676
123.
R1 BY ADV. SRI.P.SAMSUDIN
R1 BY ADV. SRI.M.ANUROOP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.11.2019, ALONG WITH Crl.MC.7416/2019(F),
Crl.MC.7418/2019(F), Crl.MC.7423/2019(G),
Crl.MC.7428/2019(G), THE COURT ON 20.11.2019 PASSED THE
FOLLOWING:
Crl.M.C.Nos.7416/2019
7418/2019, 7419/2019,
7423/2019 & 4
7428/2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA,
1941
Crl.MC.No.7423 OF 2019(F)
AGAINST THE ORDER IN CRMC 1647/2019 DATED 01-08-2019
SESSIONS COURT, ERNAKULAM
O.R.NO.38/2019 OF AIR INTELLIGENCE UNIT, NEDUMBASSERY U/S
8(c), 23(c), 27A, 28, 20(b) r/w Sec.29 NDPS ACT.1985
PETITIONER/COMPLAINANT:
SUPERINTENDENT OF CUSTOMS
AIR CUSTOMS COCHIN INTERNATIONAL AIRPORT,
COCHIN, REPRESENTED BY THE SPECIAL PUBLIC
PROSECUTOR
BY ADV. SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR
CUSTOMS,COCHIN COMMISSIONERATE
RESPONDENT/ACCUSED NO.5:
MOHAMMED SHAFEEQ M.K.
AGED 27 YEARS
S/O. RAHOOF,154/14,KALLUNKOOL MEETHAL, KAVIYOOR
P.O, CHOKLI, KANNUR-670 672
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.11.2019, ALONG WITH Crl.MC.7416/2019(F),
Crl.MC.7418/2019(F), Crl.MC.7419/2019(F),
Crl.MC.7428/2019(G), THE COURT ON 20.11.2019 PASSED THE
FOLLOWING:
Crl.M.C.Nos.7416/2019
7418/2019, 7419/2019,
7423/2019 & 5
7428/2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA,
1941
Crl.MC.No.7428 OF 2019(F)
AGAINST THE ORDER IN CRMC 1580/2019 DATED 02-08-2019
SESSIONS COURT, ERNAKULAM
O.R.NO.38/2019 OF AIR INTELLIGENCE UNIT, NEDUMBASSERY U/S
8(c), 23(c), 27A, 28, 20(b) r/w Sec.29 NDPS ACT.1985
PETITIONER/COMPLAINANT:
SUPERINTENDENT OF CUSTOMS
AIR INTELLIGENCE UNIT, COCHIN INTERNATIONAL
AIRPORT, NEDUMBASSERY, REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR,
BY ADV. SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR
CUSTOMS,COCHIN COMMISSIONERATE
RESPONDENT/ACCUSED NO.4:
ABDUL RAFEEQUE K.K
S/O ALAVIKKUTTY, KUZHIMATTUKALATHIL HOUSE,
NARUKARA P.O.MALAPPURAM DISTRICT-676 122.
R1 BY ADV. SRI.P.SAMSUDIN
R1 BY ADV. SRI.M.ANUROOP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.11.2019, ALONG WITH Crl.MC.7416/2019(F),
Crl.MC.7418/2019(F), Crl.MC.7419/2019(F),
Crl.MC.7423/2019(G), THE COURT ON 20.11.2019 PASSED THE
FOLLOWING:
Crl.M.C.Nos.7416/2019
7418/2019, 7419/2019,
7423/2019 & 6
7428/2019
R.NARAYANA PISHARADI, J
************************
Crl.M.C.Nos.7416 of 2019, 7418 of 2019,
7419 of 2019, 7423 of 2019
&
7428 of 2019
-----------------------------------------------
Dated this the 20th day of November, 2019
ORDER
These petitions are filed by the Superintendent of Customs, Air Intelligence Unit, Cochin International Airport, under Sections 439(2) and 482 Cr.P.C, for cancellation of the bail granted to accused 1, 2 and 4 to 6 in the case which was registered as O.R No. 38/2019 of the Air Intelligence Unit, Nedumbassery under Sections 23(c), 27A, 28 and 29 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
Crl.M.C.Nos.7416/20197418/2019, 7419/2019, 7423/2019 & 7 7428/2019
2. On 26.01.2019, at about 23:25 hours, the Air Intelligence Unit of Cochin Customs got information from the security staff of the Cochin International Airport that they had seen some images suspected to be of a narcotic substance in a blue colour trolley bag, which belonged to the first accused. Thereafter, the customs officers of the Air Intelligence Unit intercepted the first accused, who was bound to travel to Doha. The blue trolley bag, which belonged to him, was searched and 1602 grams of hashish was seized from it and he was arrested.
3. The statement of the first accused was recorded under Section 67 of the Act on 27.01.2019. His statement revealed that his ticket to Doha was booked by the second accused. The second accused was summoned and his statement was recorded on 29.01.2019. His statement revealed that he had booked the ticket for the first accused for Doha as per the direction given by one Ashraf @ Sharafudheen, who was working in Qatar. The second accused was arrested on that day.
4. The statement of the first accused and the call data Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 8 7428/2019 records of his mobile phone revealed that he had contacted accused 4 to 6. The fourth and the fifth accused appeared before the Superintendent of Customs and their statements were recorded under Section 67 of the Act. Their statements revealed that one Yasif had asked the fourth accused to find out a person to go to Qatar and that the fourth accused contacted the fifth accused to find out a person and that the fifth accused found out the first accused for that purpose. The fourth and the fifth accused were again summoned on 04.07.2019 and they were arrested on that date.
5. The statement of the fifth accused revealed that he had asked the sixth accused, an autorickshaw driver, to drop the first accused at the airport. The statement of the sixth accused was recorded on 19.06.2019. His statement revealed that, as per the direction given by the fifth accused, he dropped the first accused at the airport on 26.01.2019, after collecting the flight ticket, visa and the trolley bag from the third accused.
6. The third accused appeared before the Superintendent Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 9 7428/2019 of Customs as per the direction given by this Court and his statement was recorded. His statement revealed that he had handed over the trolley bag and visa to the sixth accused. On 30.06.2019, the third accused was arrested. Subsequently, the statement of the third accused was again recorded and it revealed that it was the seventh accused, who had handed over the trolley bag containing the hashish to him.
7. As per the orders passed on different dates, the Court of Session, Ernakulam, granted bail to accused 1, 2 and 4 to 6. The Superintendent of Customs has approached this Court with these petitions for cancellation of the bail granted to the aforesaid accused.
8. Heard the learned Special Public Prosecutor for Cochin Customs and also the learned counsel who appeared for the respondents/accused in the petitions. Also perused the case file produced by the learned Special Public Prosecutor.
9. Learned Special Public Prosecutor contended that the learned Sessions Judge has granted bail to the Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 10 7428/2019 respondents/accused, except to the first accused, without adverting to the provision contained under Section 37(1)(b) of the Act and without being satisfied of the conditions mentioned therein. As regards the first accused, learned Special Public Prosecutor has submitted that, the learned Sessions Judge has illegally and wrongly granted statutory bail to the first accused without taking into consideration the relevant provisions under the Act.
10. Learned counsel for the respondents/accused would contend that there was long delay in filing the applications for cancellation of bail and that the accused have not violated the conditions of bail till this time. Learned counsel would also contend that, from the very fact that the learned Sessions Judge has granted bail to the accused, it can be inferred that the court had satisfied about the conditions mentioned under Section 37(1)
(b) of the Act.
11. As regards the first accused, learned counsel appearing for him would contend that, an offence involving Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 11 7428/2019 commercial quantity of any narcotic substance or drug was not alleged against the accused at the time of granting bail to the first accused and therefore, the learned Sessions Judge was perfectly justified in granting statutory bail to the first accused.
12. There is no dispute with regard to the fact that 1602 grams of hashish constitutes commercial quantity as prescribed under the Act.
13. Section 37 of the Act reads as follows:
"37. Offences to be cognizable and non- bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) -
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence
punishable for offences under Section 19 or
Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless -
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 12 7428/2019 the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
14. A plain reading of Section 37 of the Act would show that no person accused of an offence punishable under Section 19 or Section 24 or Section 27A of the Act and also for offences involving commercial quantity shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application for bail. When the Public Prosecutor opposes the application, in order to grant bail, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations in granting bail specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations under the Code of Criminal Procedure Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 13 7428/2019 or any other law for the time being in force, on granting of bail. Section 37 of the Act curtails the freedom of the Court in granting bail and it creates restrictions on the power of the Court to release a person accused of the offences specified under clause (b) of sub-section (1).
15. Apart from giving an opportunity to the Public Prosecutor to oppose the application, satisfaction of the court with regard to two matters is mandatory before granting bail to a person who is accused of the offences specified under clause (b) of sub-section (1) Section 37 of the Act. They are (i) reasonable grounds for believing that the accused is not guilty of the alleged offence and (ii) he is not likely to commit any offence while on bail. These two conditions are cumulative and not alternative. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.
16. The satisfaction contemplated, regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the Act. Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 14 7428/2019 It means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both aspects, as noted above, is sine qua non for granting bail to a person who is accused of the offences specified under clause (b) of sub-section (1) of Section 37 of the Act.
17. However, while considering an application for bail with reference to Section 37 of the Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed the offence alleged against him. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 15 7428/2019 that he is not likely to commit an offence under the Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.
18. The aforesaid principles have been laid down by the Supreme Court in Union of India v. Shiv Shanker Kesari :
(2007) 7 SCC 798, Union of India v. Rattan Mallik : (2009) 2 SCC 624 and Union of India v. Niyazuddin : AIR 2017 SC 3932.
19. I shall now examine whether the learned Sessions Judge has granted bail to the accused after recording satisfaction of the two conditions mentioned under Section 37(1)
(b) of the Act. I shall also consider whether, at this stage, this Court is required to cancel the bail granted to the accused by the learned Sessions Judge .
20. The application Crl.M.C.No.7416/2019 relates to cancellation of bail granted to the second accused. Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 16 7428/2019
21. The reasons stated by the learned Sessions Judge for granting bail to the second accused are the following:
"The petitioner was arrested on 29.01.2019 at Cochin International Airport and since then he has been in judicial custody. Admittedly, no narcotic product or psychotropic substance was seized from the possession of the petitioner. Hashish was seized from the possession of the 1st accused. The petitioner was arrayed as an accused only for the reason that he happened to book the ticket for the 1st accused. It is also alleged that the ticket is booked by the petitioner at the instance of one Ashraf @ Sharafudhin who is an accused in drug trafficking case. In the investigation conducted so far there is nothing to connect the petitioner with the alleged crime except the fact that he happened to book the ticket for the 1st accused. For all these reasons, I am of the view that further detention of the petitioner is not necessary and he can be released on bail on conditions."
22. A bare perusal of the above reasons stated by the learned Sessions Judge for granting bail to the second accused would show that the learned Sessions Judge has not adverted to Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 17 7428/2019 the conditions mentioned under Section 37(1)(b) of the Act and that he has not recorded any satisfaction with regard to those conditions. It is also not possible to infer from the order passed by the learned Sessions Judge that he was satisfied about the twin conditions mentioned under Section 37(1)(b) of the Act. As stated by the Apex Court in Rattan Mallik (supra), the observation "nothing has been found from his possession" in the impugned order granting bail is not sufficient to infer that the learned Sessions Judge had applied his mind to the provisions contained in Section 37(1)(b) of the Act.
23. However, on a consideration of the allegations raised against the second accused and the materials against him, I find that there is no sufficient ground to cancel the bail granted to him. The second accused was granted bail by the learned Sessions Judge on 07.02.2019. It was only on 26.10.2019, the application for cancellation of bail was filed. The petitioner has no case that the second accused has violated any of the conditions of bail till this time.
Crl.M.C.Nos.7416/20197418/2019, 7419/2019, 7423/2019 & 18 7428/2019
24. True, the prayer for cancellation of bail granted to the second accused is made not on the ground that he has violated the conditions of bail but on the ground of illegality of the order granting him bail. The allegation against the second accused is that he had booked the flight ticket for the first accused. He had booked the flight ticket for the first accused not at the instance of the first accused but at the instance of one Ashraf @ Sharafudheen. The offence alleged against the second accused is punishable under Section 29 of the Act. Considering the nature of the act allegedly committed by the second accused, I am of the view that there are reasonable grounds for believing that he is not guilty of an offence punishable under Section 29 of the Act. There are also no materials to find that he is likely to commit any offence, while on bail. In fact, during the period he was on bail, he has not committed any offence. In these circumstances, I find that he is entitled to be released on bail on satisfaction by this Court of the two conditions mentioned under Section 37(1)
(b) of the Act. Therefore, the bail already granted to him by the Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 19 7428/2019 learned Sessions Judge, as early as on 07.02.2019, need not be cancelled.
25. The application Crl.M.C.No.7428/2019 relates to the cancellation of bail granted to the fourth accused in the case.
26. The reasons stated by the learned Sessions Judge for granting bail to the fourth accused are as follows:
"Admittedly, no narcotic drug or psychotropic substances were seized from the possession of the petitioners. Hashish was seized from the possession of the 1 st accused, who has already been released on bail. The petitioners were arrayed as accused only for the reason that their mobile phone numbers were saved in the mobile phone of the 1st accused. According to the prosecution, 3rd accused asked the 4th accused to search for a person who is going to Quatar and accordingly he arranged Accused No.3."
27. Here also, the learned Sessions Judge has not adverted to the twin conditions mentioned under Section 37(1)
(b) of the Act. Learned Sessions Judge has not recorded any satisfaction of the conditions mentioned therein. On that ground, Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 20 7428/2019 it can be found that the order granting bail to the fourth accused is illegal.
28. However, in the case of the fourth accused also, I find that cancellation of the bail already granted to him by the learned Sessions Judge is not called for. He was granted bail by the learned Sessions Judge on 02.08.2019. It was only on 26.10.2019 that the petitioner approached this Court for cancellation of the bail granted to the fourth accused. There is no allegation that the fourth accused has violated any of the conditions of bail till this time while he was on bail.
29. True, the prayer for cancellation of the bail granted to the fourth accused is made not on the ground of violation of the conditions of bail but on the ground of the illegality of the order granting him bail. But the allegation against the fourth accused is only that, at the instance of one Yasif, he had asked the fifth accused to arrange a person to go to Qatar. The offence alleged against the fourth accused is under Section 29 of the Act. Considering the nature of the allegation against him, I am of the Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 21 7428/2019 view that there are reasonable grounds for believing that he is not guilty of an offence under Section 29 of the Act. There are also no materials to find that he is likely to commit any offence, while on bail. In fact, during the period he was on bail, he has not committed any offence. In these circumstances, especially considering the nature of the allegations against the fourth accused, I find that he is entitled to be released on bail on satisfaction by this Court of the two conditions mentioned under Section 37(1)(b) of the Act. Therefore, it is not required to cancel the bail already granted to him by the learned Sessions Judge.
30. The application Crl.M.C.No.7423/2019 relates to cancellation of the bail granted to the fifth accused in the case.
31. The following are the reasons stated by the learned Sessions Judge for granting bail to the fifth accused.
"The petitioner was arrested on 26.01.2019 at Cochin International Airport and since then he has been in judicial custody. Admittedly, no narcotic product or psychotropic substance was Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 22 7428/2019 seized from the possession of the petitioner. Hashish was seized from the possession of the 1 st accused. The petitioner was arrayed as an accused only for the reason that the mobile phone number of the petitioner was saved in the mobile phone of the 1st accused. In the statement under Section 67 of the NDPS Act, accused No.1 stated that Hashish seized from him was brought to Airport for being taken to Quatar as instructed by his friends Rafik and Arish. Nothing was spoken to by the 1st accused against the petitioner. In the investigation conducted so far, there is no sufficient material to connect the petitioner with crime except the fact that his mobile phone number was found in the mobile phone of the 1 st accused. For all these reasons, I am of the view that further detention of the petitioner is not necessary and he can be released on bail on conditions."
32. Here also, the learned Sessions Judge has not adverted to the twin conditions mentioned under Section 37(1)
(b) of the Act. Learned Sessions Judge has not recorded any satisfaction of the conditions mentioned therein. On that ground, it can be found that the order granting bail to the fifth accused is Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 23 7428/2019 illegal.
33. The fifth accused was granted bail by the learned Sessions Judge on 01.08.2019. The application for cancellation of his bail was filed only on 26.10.2019. The petitioner has no case that the fifth accused has violated any of the conditions of bail till this time while he was on bail.
34. True, the prayer for cancellation of the bail granted to the fifth accused is made not on the ground of violation of the conditions of bail but on the ground of the illegality of the order granting him bail. However, the allegation against him is only that he arranged the first accused as the person to go to Qatar and he had also arranged vehicle, through the sixth accused, for the first accused to reach the airport. The allegation against the fifth accused is that he committed an offence punishable under Section 29 of the Act. Considering the nature of the allegations against him, I am of the view that there are reasonable grounds for believing that he is not guilty of an offence under Section 29 of the Act. There are also no materials to find that he is likely to Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 24 7428/2019 commit any such offence, while on bail. In fact, during the period he was on bail, he has not committed any offence. In these circumstances, especially considering the nature of the allegations against the fifth accused, I find that he is entitled to be released on bail on satisfaction by this Court of the two conditions mentioned under Section 37(1)(b) of the Act and therefore, it is not required to cancel the bail already granted to him by the learned Sessions Judge.
35. The application Crl.M.C.No.7419/2019 relates to cancellation of the bail granted to the sixth accused in the case.
36. The reason stated by the learned Sessions Judge for granting bail to the sixth accused reads as follows:
"The role played by the 6 th accused according to the prosecution is that he being an autorickshaw driver dropped the 3 rd accused to Cochin International Airport on 26.01.2019."
37. Here also, the learned Sessions Judge has not adverted to the twin conditions mentioned under Section 37(1)
(b) of the Act. Learned Sessions Judge has not recorded any Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 25 7428/2019 satisfaction of the conditions mentioned therein. On that ground, it can be found that the order granting bail to the sixth accused is illegal.
38. The sixth accused was granted bail by the learned Sessions Judge on 02.08.2019. The application for cancellation of his bail was filed only on 26.10.2019. The petitioner has no case that the sixth accused has violated any of the conditions of bail till this time while he was on bail.
39. True, the prayer for cancellation of the bail granted to the sixth accused is made not on the ground of violation of the conditions of bail but on the ground of the illegality of the order granting him bail. The allegation against the sixth accused is only that he collected the trolley bag, flight ticket and visa from the third accused and he took the first accused to the airport in a vehicle. The offence alleged against the sixth accused is punishable under Section 29 of the Act. On a consideration of the nature of the allegations raised against him, I am of the view that there are reasonable grounds for believing that he is not Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 26 7428/2019 guilty of an offence under Section 29 of the Act. There are also no materials to find that he is likely to commit any offence, while on bail. In fact, during the period he was on bail, he has not committed any offence. In these circumstances, especially considering the nature of the allegations against the sixth accused, I find that he is entitled to be released on bail on satisfaction by this Court of the two conditions mentioned in Section 37(1)(b) of the Act. Therefore, it is not required to cancel the bail already granted to him by the learned Sessions Judge.
40. The petition Crl.M.C.No.7418/2019 relates to the cancellation of bail granted to the first accused in the case. In this connection, it is to be noted that the first accused was granted statutory bail by the learned Additional Sessions Judge on the ground that he had been under detention in jail for more than sixty days and that no chargesheet had been filed in the case.
41. Section 36A(4) of the Act provides as follows:
"In respect of persons accused of an offence punishable under Section 19 or Section 24 or Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 27 7428/2019 Section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days.
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
42. Learned counsel for the first accused submitted that, even at the time of granting bail to the first accused by the learned Additional Sessions Judge, the offence alleged against the first accused was only under Section 20(b)(ii)B of the Act. Learned counsel would point out that, at that time, there was no allegation that the first accused had possessed any narcotic substance, which constitutes commercial quantity and therefore, the learned Additional Sessions Judge was perfectly justified in Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 28 7428/2019 granting statutory bail to the first accused.
43. I find it difficult to accept the aforesaid submission. It may be true that the investigating officer has wrongly quoted Section 20(b(ii)B of the Act as the penal provision. However, the learned Additional Sessions Judge should have noticed that 1602 grams of hashish had been seized from the possession of the first accused. In fact, what is stated by the learned Additional Sessions Judge in the impugned order is that only 1.602 grams (not 1602 grams) of hashish was seized. This would show that the learned Additional Sessions Judge had not applied his mind while granting statutory bail to the petitioner. The learned Sessions Judge had not considered whether the quantity of the narcotic substance seized from the possession of the first accused constituted commercial quantity irrespective of the penal provision mentioned by the investigating officer in the records.
44. In the aforesaid circumstances, I have no hesitation to hold that the order passed by the learned Additional Sessions Judge granting statutory bail to the first accused, without Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 29 7428/2019 considering the provisions contained in Section 36A(4) of the Act, was illegal.
45. However, it is to be noted that it was on 20.04.2019 that the first accused was granted statutory bail by the learned Additional Sessions Judge. The application for cancellation of bail was filed only on 26.10.2019. The first accused has got a plea that complaint was not filed by the investigating officer within a period of 180 days from the date of arrest of the first accused and therefore, even if he had not been granted bail by the learned Additional Sessions Judge, he could have sought and he would have obtained statutory bail on the expiry of the period of 180 days from the date of his arrest. On a perusal of the case file produced by the learned Special Public Prosecutor, I could not find out the specific date on which complaint was filed before the competent court by the investigating officer. Even in the petition filed for cancellation of bail granted to the first accused, it is not stated, on which date the complaint was filed. What is stated is only that, after Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 30 7428/2019 completing the investigation, complaint is filed in the Sessions Court, Ernakulam. There is also no plea raised by the petitioner that report was filed by the Public Prosecutor for extension of the period upto one year as mentioned in the proviso to Section 36A(4) of the Act.
46. In the aforesaid circumstances, inspite of the illegality committed by the learned Additional Sessions Judge in granting statutory bail to the first accused, at this distant point of time, I am not inclined to cancel the bail granted to the first accused, especially in the absence of any material produced by the petitioner to show that complaint was filed within a period of 180 days from the date of arrest of the first accused.
47. In respect of accused 2 and 4 to 6, the statements given by each of them and the co-accused under Section 67 of the Act constitute almost the entire basis of the prosecution case against them. The questions, whether an officer investigating the matter under the Act would qualify as a police officer or not and whether the statement recorded under Section 67 of the Act Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 31 7428/2019 would be admissible in evidence or not, have been referred to consideration by a larger Bench of the Supreme Court (See Tofan Singh v. State of Tamil Nadu : (2013) 16 SCC 31). Till the decision of the larger bench of the Apex Court comes, it has to be found that the statement of a person under Section 67 of the Act is admissible in evidence. Yet, confession of a co-accused is a very weak type of evidence. Without any other materials to corroborate the statements of the accused and the co-accused recorded under Section 67 of the Act, it may not be possible to find an accused guilty of an offence under the Act (See Mohammed Fasrin v. State : AIR 2019 SC 4427). This is the basis on which I have reached a conclusion that there are reasonable grounds for believing that the accused 2 and 4 to 6 are not guilty of the offences alleged against them.
48. The discussion above would show that all the petitions are liable to be dismissed.
49. Consequently, the petitions are dismissed. However, I make it clear that, nothing stated in this order with regard to the Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 32 7428/2019 merits of the case against the accused, shall in any manner influence the trial court in framing the charge against the accused or the trial of the case against the accused.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr/20/11/2019 Crl.M.C.Nos.7416/2019 7418/2019, 7419/2019, 7423/2019 & 33 7428/2019 APPENDIX OF Crl.MC 7416/2019 PETITIONER'S EXHIBITS:
ANNEXURE A TRUE COPY OF THE ORDER DATED 7.2.2019 IN CRL.MC NO 256/19 PASSED BY THE SESSIONS JUDGE ERNAKULAM ANNEXURE B TRUE COPY OF THE ORDER IN BA NO 7448/2019 DATED 24.10.2019 RESPONDENT'S EXHIBITS :NIL TRUE COPY PS TO JUDGE APPENDIX OF Crl.MC 7418/2019 PETITIONER'S EXHIBITS:
ANNEXURE A TRUE COPY OF THE BAIL ORDER DATED 20.4.19 IN CRL.M.C.NO.800/19 OF THE SESSION'S JUDGE, ERNAKULAM.
RESPONDENT'S EXHIBITS :NIL TRUE COPY PS TO JUDGE APPENDIX OF Crl.MC 7419/2019 PETITIONER'S EXHIBITS: ANNEXURE A TRUE COPY OF THE BAIL ORDER DATED 2.8.2019 IN CRL.MC. NO 1730/19 OF THE SESSIONS JUDGE , ERNAKULAM RESPONDENT'S EXHIBITS :NIL TRUE COPY PS TO JUDGE APPENDIX OF Crl.MC 7423/2019 PETITIONER'S EXHIBITS: ANNEXURE-A TRUE COPY OF THE BAIL ORDER DT 2.8.19 IN CRL M.C.NO.1730/19 OF THE SESSIONS'S JUDGE,ERNAKULAM RESPONDENT'S EXHIBITS :NIL TRUE COPY PS TO JUDGE APPENDIX OF Crl.MC 7428/2019 PETITIONER'S EXHIBITS: ANNEXURE A TRUE COPY OF THE BAIL ORDER DATED 2.8.2019 IN CRL.M.C.NO 1580/19 OF THE SESSIONS JUDGE, ERNAKULAM RESPONDENT'S EXHIBITS :NIL TRUE COPY PS TO JUDGE