Kerala High Court
Muhammed Ameen vs The Narcotic Control Bureau on 17 December, 2019
Equivalent citations: AIRONLINE 2019 KER 821
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941
Bail Appl..No.9161 OF 2019
PETITIONERS/ACCUSED NOS.2 & 3:
1 MUHAMMED AMEEN
AGED 32 YEARS
S/O. MUHAMMED KASIM, 7/82, ADURUTHAN STREET,
KILAKARAI, RAMANATHAPURAM DISTRICT,
TAMIL NADU.
2 MUHAMMED ARSATH
AGED 28 YEARS
S/O. SHAHUL HAMEED, 3/68,
BARATHAR STREET, KILAKARAI,
RAMANATHAPURAM DISTRICT, TAMIL NADU.
BY ADV. SRI.BABU S. NAIR
RESPONDENT/COMPLAINANT:
THE NARCOTIC CONTROL BUREAU,
COCHIN, REPRESENTED BY ITS INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU, SUB ZONE, COCHIN,
THROUGH ITS SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 682 031.
SRI M.V.S. NAMBOOTHIRY SC
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
17.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.9161 OF 2019 2
ORDER
This is the second application filed by the applicants seeking regular bail.
The earlier application filed as B.A.No.7787 of 2019 was dismissed by a considered order on 29.11.2019. This application is filed on 11.12.2019 raising the very same contentions.
2. The applicants herein are accused Nos.2 and 3 in O.R. No. 6 of 2019 of the Narcotics Control Bureau, Cochin ("NCB" for short) registered under Section 8 (c) r/w. Section 22 (c), 23 (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS" Act for short). The prosecution allegation is that they were found having in their possession large quantity of methamphetamine and they were apprehended at the Airport by the Central Industrial Security Force while they were on their way to a foreign country. Later, the Narcotic Control Bureau took over the case and the crime was registered.
3. It is the case of the prosecution that the 1 st applicant was found having in his possession 283 gms and the 2 nd applicant 260 gms of methamphetamine.
4. The factual backdrop, the contentions advanced by the applicants and the learned Public Prosecutor were all narrated in detail in the previous order and I find no reason to repeat the same herein. However, I shall extract paragraph Nos. 14 to 24 for easy reference.
Bail Appl..No.9161 OF 2019 3"14. I have considered the submissions advanced and have anxiously gone through the case records which have been made available by the learned counsel appearing for the NCB.
15. The NDPS Act, 1985 was enacted to consolidate and amend the law relating to narcotic drugs to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object of the Act, Section 37 of the Act, in negative terms limits the scope of the applicability of the provisions of the Code of Criminal Procedure regarding bail. The object of the Act is to completely curb and put a ban on the use, consumption, sale, purchase and possession of narcotics and psychotropic substances.
Section 37 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 Bail Appl..No.9161 OF 2019 4 release, and
(ii) where the Public Prosecutor opposes 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.
16. Interpreting the provisions of Section 37, the Hon'ble Supreme Court in Union of India v. Shiv Sankar Kesari1 had occasion to observe as follows:
"6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.
7. The expression used in S.37(1)(b)(ii) is 'reasonable grounds'. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in 1 [2007(7) SCC 798] Bail Appl..No.9161 OF 2019 5 themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.
8. The word 'reasonable' has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'. Stroud's Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy. (See -- Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Another, AIR 1987 SC 2316 and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and Another, AIR 1989 SC 973).
9. It is often said 'an attempt to give a specific meaning to the word 'reasonable' is trying to count what is not number and measure what is not space'. The author of Words and Phrases' (Permanent Edition) has quoted from in re Nice & Schreiber, 123 F. 987, 988 to give a plausible meaning for the said word. He says, 'the expression 'reasonable' is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'. It is not meant to be expedient or convenient but certainly something more than that.
10. The word 'reasonable' signifies 'in accordance with reason'. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the Bail Appl..No.9161 OF 2019 6 circumstances in a given situation. (See -- Municipal Corporation of Greater Mumbai and Another v. Kamla Mills Ltd., 2003 (6) SCC 315.
11. The Court while considering the application for bail with reference to S.37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion."
17. In other words, the non obstante clause in the Section and sub-s. (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under S.439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub clause (b) of sub-section (1) of S.37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the Bail Appl..No.9161 OF 2019 7 accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. 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 said Act but 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 the aspects noted above, is sine qua non for granting of bail under the NDPS Act. (see Union of India v.
Rattan Mallik @ Habul [2009 (2) SCC 624].
18. In the above backdrop, the submissions of the learned counsel can be considered. The main contention advanced by the learned counsel is regarding the violation of the provisions of Section 50 of the NDPS Act. Under Section 50 of the Act mandates that if a person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 42 shall take such person without unnecessary delayed to the nearest Gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. It is by now settled that it is obligatory on the Bail Appl..No.9161 OF 2019 8 part of the officer to inform the person of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a Magistrate. It is also settled by now that if during such search or arrest, there is a chance recovery of any narcotic drugs and psychotropic substances, then the officer who is not empowered is required to inform the empowered officer who has to thereafter proceed in accordance with the provisions of the Act. If he happens to be an empowered officer, then from that stage onwards, he is required to carry on the investigation in accordance with the provisions of the Act.
19. In the case on hand, the detection was on 6.10.2019. There is some merit in the submission of the learned counsel appearing for the applicant that in the mahazar or in the occurrence report, there are no materials to show what had actually transpired in the Airport during frisking operations. However, as rightly submitted by the Central Government Standing counsel, the investigation has just only commenced and the entire records including the CCTV footage of the interception is available with the CISF. At this stage, this Court will not be justified in doubting the seizure which took place in a high security area of the International Airport. Furthermore, as held by the Apex Court in Paulsamy (supra), this Court will have take into account the factual presumption in law that official acts have been regularly performed. I therefore proceed on the basis of the available materials which shows that the 1 st accused was routinely screened by the officer of the Aviation Security Group during security check. He was found having concealed a crystal like substance inside his underwear. On interrogation, he is alleged to have disclosed that he was not Bail Appl..No.9161 OF 2019 9 alone. The CCTV footage also showed that two others were travelling with him. Since it was felt that they had escaped security check and had boarded the Aircraft, they were offloaded to ascertain as to whether they were clean. A repeat security check was conducted and it was found that they were also carrying identical substance. The substances were checked and it was found to be a psychotropic substance. The NCB was alerted and they took over the investigation as per their procedure.
20. Now the question is whether in the facts and circumstances, it can be said that the provisions of Section 50 has been violated. In State of Himachal Pradesh v. Sunil Kumar2, the Hon'ble Supreme Court had occasion to hold that in case of chance recovery, Section 50 of the Act may not have any application. Relying on Mohinder Kumar v. State, Panaji, Goa3, it was held that chance recovery is one when a police officer stumbles on narcotic drugs when he makes a search. It was held that mere suspicion, even if it is positive suspicion or grave suspicion cannot be equated with 'reason to believe'. It was also held that the positive suspicion entertained by an officer cannot be equated with prior information as contemplated under Sections 41, 42 and 43 so as to attract the provisions of Section 50 of the Act. In the case on hand, I am inclined to hold that insofar as the 1 st accused is concerned, it was a case of chance recovery as frisking is routinely conducted during security check in the Airport for security purposes. It would not be possible to conclude that Section 50 would have any application whatsoever in the instant case. Insofar as the applicants herein are concerned, they had cleared the security check and 2 [AIR 2014 SC 2564] 3 [1995 SC 1157] Bail Appl..No.9161 OF 2019 10 it was purely based on a suspicion that they had escaped screening that they were offloaded from the Aircraft and a repeat screening was conducted. It is not possible to accept the submission of the learned counsel that the CISF personnel had a reason to believe that the accused were carrying contraband. It can only be a chance recovery of Methamphetamine. At any rate, the contention advanced by the learned counsel regarding non compliance of the provisions of the NDPS Act cannot be adjudged at this particular stage. As held by the Apex Court in Paulsamy (supra), these are matters which could be established only at the stage of trial. Furthermore, in Baldev Singh (supra) it was held by the Constitution Bench that as to whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial and not at the commencement of investigation.
21. The learned counsel has pointed out certain discrepancies in the mahazar. He brought to the attention of this Court that in the mahazar it has been recorded that the statement under section 67 of the Act was recorded on 7.10.2019. However, I find from the case records that the statement of the accused under Section 67 was recorded on 8.10.2019 and it appears to be an inadvertent error. Much argument was also advanced by the learned counsel that the contemporaneous records prepared by the CISF was not made available to the accused. The investigation being in the early stages, I am not impressed with the said condition either.
22. Criminal networks traffic a range of drugs including cannabis, cocaine, heroin and methamphetamine.
Bail Appl..No.9161 OF 2019 11As international borders become increasingly porous, global abuse and accessibility to drugs have become increasingly widespread. This international trade involves growers, producers, couriers, suppliers and dealers. It affects almost all the countries by undermining political and economic stability, ruining the lives of individuals and damaging communities. The end-users and addicts are often the victims of a powerful and manipulative business. Drug trafficking is often associated with other forms of crime, such as money laundering or corruption. Trafficking routes can also be used by criminal networks to transport other illicit products. As held by the Apex Court in Baldev Singh (supra), drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including terrorist activities. Drug trafficking, trading and its use have become a global phenomena and has acquired the dimensions of an epidemic. It affects the economic policies of the State, destroys the young and healthy and corrupts the system.
23. In that view of the matter , while considering an application for bail in a case of instant nature, this Court has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other hand, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Personal liberty is a constitutionally protected right. Being a Constitutional right, no one can deprive personal liberty of a citizen. But, on the other hand, the evil of dealing with drugs Bail Appl..No.9161 OF 2019 12 has huge implications both at the national level and also at the international level.
24. Having carefully weighed all the contentions advanced before this Court and after perusing the records, I am afraid that there are no substantial probable causes for believing that the accused is not guilty of the offence charged. Furthermore , it would not be possible to conclude that the applicants are not likely to commit any offence while on bail. I hold that the applicants have not been able to point out the existence of any such facts or circumstances as are sufficient in themselves to justify recording of satisfaction that he is not guilty of the offence charged. "
5. In other words, the entire contentions advanced by the learned counsel were adverted to while dismissing their earlier applications. There has been no change in circumstances and it is asserted by the learned Standing counsel that investigation is being directed to find the source of the contraband. Having considered all the relevant facts and in view of the embargo under Section 37 of the NDPS Act, I find no reason to enlarge the applicants on bail at this stage.
This application will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE IAP