Kerala High Court
Abdul Gafoor vs The State Of Kerala on 5 November, 2021
Author: V Shircy
Bench: V Shircy
[Bail Appl. Nos.7095/2021
and connected cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
BAIL APPL. NO. 7095 OF 2021
(CRIME NO.320 OF 2021 OF NALLALAM POLICE STATION)
PETITIONER/3RD ACCUSED
ABDUL GAFOOR,
AGED 44 YEARS
S/O.ABDUL MAJEED, PANDIKASALAKANDY HOUSE, BEYPORE
P.O., KOZHIKODE DISTRICT, PIN-673 015.
BY ADVS.
P.SAMSUDIN
S.SREEKUMAR (SR.)
RESPONDENT/STATE:
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
EKRALA, ERNAKULAM-682 031. (IN CRIME NO.320/2021 OF
NALLALAM POLICE STATIN IN KOZHIKODE DISTRICT).
BY ADVS.
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.NOUSHAD PP
[Bail Appl. Nos.7095/2021
and connected cases 2
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.11.2021, ALONG WITH Bail Appl..7356/2021, 7944/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
[Bail Appl. Nos.7095/2021
and connected cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
BAIL APPL. NO. 7356 OF 2021
CRIME NO.539/2021 OF Kasaba Police Station, Kozhikode
PETITIONER/ACCUSED
ABDUL GAFOOR
AGED 44 YEARS
S/O. ABDUL MAJEED, PANDIKASALAKANDY HOUSE, BEYPORE
P.O, KOZHIKODE - 673015.
BY ADVS.
P.SAMSUDIN
S.SREEKUMAR (SR.)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031.
(IN CRIME NO. 539/2021 OF KOZHIKODE CUSBA POLICE
STATION)
BY ADVS.
DIRECTOR GENERAL OF PROSECUTION
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.11.2021, ALONG WITH Bail Appl..7095/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[Bail Appl. Nos.7095/2021
and connected cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
BAIL APPL. NO. 7944 OF 2021
CRIME NO.541/2021 OF Kasaba Police Station, Kozhikode
PETITIONER/4TH ACCUSED
ABDUL GAFOOR,
AGED 44 YEARS
S/O. ABDUL MAJEED, PANDIKASALAKANDY HOUSE, BEYPORE
P.O-673 015, KOZHIKODE DISTRICT.
BY ADVS.
P.SAMSUDIN
S.SREEKUMAR (SR.)
RESPONDENT/STATE
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031
BY SRI.P.NARAYANAN SR.PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.11.2021, ALONG WITH Bail Appl..7095/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[Bail Appl. Nos.7095/2021
and connected cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
BAIL APPL. NO. 7949 OF 2021
CRIME NO.540/2021 OF Kasaba Police Station, Kozhikode
PETITIONER/4TH ACCUSED
ABDUL GAFOOR
AGED 44 YEARS
S/O. ABDUL MAJEED, PANDIKASALAKANDY HOUSE, BEYPORE
P. O. - 673 015, KOZHIKODE DISTRICT.
BY ADVS.
P.SAMSUDIN
S.SREEKUMAR (SR.)
RESPONDENT/STATE
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
(IN CRIME NO.540/2021 OF CUSBA POLICE STATION IN
KOZHIKODE CITY)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.11.2021, ALONG WITH Bail Appl..7095/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[Bail Appl. Nos.7095/2021
and connected cases 6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
BAIL APPL. NO. 7961 OF 2021
CRIME NO.543/2021 OF Kasaba Police Station, Kozhikode
PETITIONER/ACCUSED:
ABDUL GAFOOR
AGED 44 YEARS
S/O. ABDUL MAJEED, PANDILKASALAKANDY HOUSE, BEYPORE
P.O 673 015 KOZHIKODE DISTRICT.
BY ADVS.
P.SAMSUDIN
S.SREEKUMAR (SR.)
RESPONDENT/STATE
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031
(IN CRIME NO. 543/2021 OF CUSBA POLICE STATION IN
KOZHIKODE CITY)
BY SRI.P.NARAYANAN, SR. PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.11.2021, ALONG WITH Bail Appl..7095/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[Bail Appl. Nos.7095/2021
and connected cases 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
BAIL APPL. NO. 7962 OF 2021
CRIME NO.542/2021 OF Kasaba Police Station, Kozhikode
PETITIONER/4TH ACCUSED
ABDUL GAFOOR
AGED 44 YEARS
S/O. ABDUL MAJEED, PANDIKASALAKANDY HOUSE, BEYPORE
P.O, - 673015.
BY ADVS.
P.SAMSUDIN
S.SREEKUMAR (SR.)
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031.
(IN CRIME NO. 542/2021 OF CUSBA POLICE STATION IN
KOZHIKODE CITY)
BY SRI. P.NARAYANAN SRI. PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.11.2021, ALONG WITH Bail Appl..7095/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[Bail Appl. Nos.7095/2021
and connected cases 8
ORDER
[Bail Appl. Nos.7095/2021, 7356/2021, 7944/2021, 7949/2021, 7961/2021, 7962/2021] Applications for pre-arrest bail.
2. The petitioner is arraigned as the 4 th accused in Crime No.320 2021 of Nallalam police station registered for the offences punishable under Sections 420, 120(b) read with Section 34 of the Indian Penal Code, Section 4 and 20 of Indian Telegraph Act,1885 , 6(1), 6(1 A) of Indian Wireless Telegraphy Act 1933 and 65, 43(a),
(b), (f), (g), (i) r/w 66 of Information Technology Act, 2000. This petitioner is also the 4 th accused in Crime No.542 of 2021(B.A.No.7962 of 2021) , Crime No.539 of 2021 ( B.A.No.7356 of 2021) and in Crime No.543 of 2021 (B.A.No.7961 of 2021) and the 5th accused in Crime No.540 of 2021( B.A.No.7949 of 2021) and in Crime No.541 of 2021 (B.A 7944 of 2021).
3. The back ground for registration of the FIR is that the S I of police, Nallalam police station had received a discreet information on 1.7.2021 at about 10.30 p.m that the accused by [Bail Appl. Nos.7095/2021 and connected cases 9 using multiple broad band connections intentionally converted international phone calls and other phone calls, by terminating those calls and bypassed them to local calls, with the help of illegal call routing Gateway devices, by inserting pre activated SIM cards, without the consent or knowledge of the SIM owner, with criminal intention indulged in illegal and fraudulent activities to acquire unlawful gain and cheated various telecom service providers in India. Thus they accessed, tampered, altered and diminished the value of telecommunication network of the country and conducted parallel telephone exchanges at different locations at Kozhikode and caused huge monitory loss to the Government and the service providers . All the cases were registered on similar set of facts.
4. Heard the learned senior counsel for petitioner and the learned Addl. Public Prosecutor.
5. Learned senior counsel appearing on behalf of the petitioner vehemently submitted that the petitioner who is the director of a company namely 'Binafa Enterprises' engaged in building and exporting luxurious dhows has been falsely implicated in the case. Binafa Enterprises has an office in Yamuna Arcade in [Bail Appl. Nos.7095/2021 and connected cases 10 Kozhikode. One person namely Faisal is running a mobile service centre in a room on the top floor of the building. He used to receive articles through parcel. For easy identification and to locate the place, parcels are addressed to ''Faisal c/o Binafa Enterprises''. Without any knowledge of the illegal activities indulged by him the petitioner's staff used to receive the parcel and hand over to Faisal. But the petitioner has no connection with the business run by the 1st accused at any point of time. Nothing has been seized from his possession. This petitioner has not indulged in any illegal activity as alleged. But he apprehends unnecessary arrest and hence, this application.
6. The learned Public Prosecutor vehemently opposed the applications contending that in total five cases were registered against the petitioner suo motu on getting reliable information by the SI of police, Kasaba and one case before the Nallalam police station and now the cases are being investigated by the Asst. Commissioner of Police District branch, Kozhikode city. On getting the information, the SI and his team conducted search and with the help of AGM of BSNL examined the seized articles (29 GSM [Bail Appl. Nos.7095/2021 and connected cases 11 Gateway devices and 794 pre activated SIM Cards) and found that by using the equipment and devices calls from abroad and India were terminated and transformed into local GSM calls, eventually the person who receives the call witness a local phone number of any of the SIM cards, which is inserted in the various SIM slots in the GSM gateway. The petitioner along with the other accused were running an illegal telephone exchange and telecom services. Thus they created heavy revenue loss to the service providers as well to the department of telecom and to the Government. The investigation is only at the initial stage and it was revealed that forgery had also been committed by the accused. This petitioner is the master mind behind the entire criminal activities and most of the accused persons are absconding including the petitioner. So gramting of bail at the initial stage of investigation will definitely tamper the smooth flow of investigation. Moreover, custodial interrogation of this petitioner is absolutely necessary as these setups pose security threat to nation as the calls switched through these setups cannot be traced and are beyond the scope of lawful interception. In short, with the above submission the learned Public [Bail Appl. Nos.7095/2021 and connected cases 12 Prosecutor prayed for dismissal of the applications.
7. Essentially, it is to be noted that the allegations levelled against this petitioner are grave and serious in nature, as the case is that this petitioner along with the other accused are illegally running parallel telephone exchanges at six different locations. The articles seized from the building taken by this petitioner on rent as well as from the parcels received by his business concern even during investigation of the crimes reveal the gravity and seriousness of the accusations levelled against him. Parcels with SIM cards of different service providers and other articles came from different states through various courier services addressed in the name of the Firm, Binafa Enterprises owned by the petitioner and parcels reached even through Airports. The prosecution has also a case that the premises involved in Crime Nos. 539, 542 and 543 of 2021 of Kasaba Police Station were illegal setups were installed were taken on rent by using the forged Aadhar card by this petitioner. The investigation started with the arrest of one Juraiz. Later on his confession statement the involvement of this petitioner was revealed. He did not possess licence to run the business of [Bail Appl. Nos.7095/2021 and connected cases 13 construction of luxury vessels. On investigation it is revealed that the rental arrangement of the room in Crime No.320 of 2021 between this petitioner and the building owner was obtained by misleading him with a forged Aadhar card and he was not aware of the illegal setups, is the case of the prosecution. The materials so far collected by the investigating agency reveal that the rooms taken on rent by this petitioner were used for illegal business. It is also revealed that the investigating agency had conducted a search of the absconding accused after obtaining search warrants from Judicial First Class Magistrate Court-III, Kozhikode and so many documents including passbooks, cheque books of various banks, passport etc were seized. So the investigating agency has to collect details of the money transactions of the petitioner, his source of income, his foreign relation and account details etc in detail. In the report submitted by the investigating agency it is specifically stated that the people behind the operations are channeling criminal activities through an exclusive manner using expensive equipments as installation of an illegal telephone exchange is not at all a profitable business, because of the advancement of social media [Bail Appl. Nos.7095/2021 and connected cases 14 like face book, whatsapp, lnstagram etc. The investigating agency suspects something more serious. It has to delve deep into all the intricacies. Prima facie from the materials so far collected by the investigating agency, it appears that this petitioner was engaged in nefarious activities which could be investigated only with technical support and therefore, definitely custodial interrogation is inevitable in the case. The investigating agency have to gather more materials and to recover more items after his interrogation. His laptop, mobile phone etc have also to be seized and verified. As he was having close acquaintance with many people outside the country, whether he received training from outside sophisticated agencies have also to be probed into. The submission of the learned counsel for the petitioner that on the basis of the confessional statement of the 1st accused alone, this petitioner cannot be roped in case of this nature. But the investigating agency though started to investigate against the petitioner on the confessional statement of the 1 st accused, incriminating circumstances are detected and materials indicating the alleged offence are also recovered.
8. It is doubtless that granting of bail at this stage will [Bail Appl. Nos.7095/2021 and connected cases 15 definitely affect the investigation of the case. For a smooth and effective investigation the petitioner's custody appears to be quite inevitable. There is a strong prima facie case and reasonable grounds to believe that the accused had committed the alleged offences. The illegal activities indulged by this petitioner affects the interests of the country. So importance has to be given to the same rather than the personal liberty of this petitioner. A thorough investigation is absolutely necessary, as the ultimate object is to find out the truth and therefore, the petitioner is not entitled to get an order of pre-arrest bail. When an accused is booked for serious offences the judicial discretion of the court cannot be exercised without noticing the interests of the society as well the security of the country. At this stage, prima facie on the basis of the material collected by the prosecution it is difficult to believe that only for wrongful gain the accused had indulged into such unlawful and expensive illegal activities. The value of the devices used are too costly and those devices were installed for operation, in the buildings by paying huge rent.
9. Considering the nature of the accusation, the gravity of [Bail Appl. Nos.7095/2021 and connected cases 16 offences and the role attributed by the petitioner, a thorough and a deep probe with the assistance of technical experts is highly essential to unearth the truth. Therefore, for a fair and proper investigation this petitioner has to surrender before the investigating officer forthwith and co-operate with the investigation of the case.
For the reasons indicated above, all the applications stand dismissed.
Sd/-
SHIRCY V JUDGE smm