Kerala High Court
Ananthu Thampi vs Union Of India on 8 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
BAIL APPL. NO. 10147 OF 2023
CRIME NO.2/2023 OF NARCOTICS CONTROL BUREAU, KOCHI, ERNAKULAM
PETITIONER/ACCUSED NO.6:
ANANTHU THAMPI, AGED 25 YEARS
S/O.P.V. THAMPI, VELLEZHATHU HOUSE,
NEAR GOVT. HIGH SCHOOL, KUMARAKOM,
KOTTAYAM DISTRICT, PIN - 686563
BY ADVS.
BABU S. NAIR
P.A.RAJESH
SMITHA BABU
PRANAV
RESPONDENT/COMPLAINANT & STATE:
UNION OF INDIA,
REPRESENTED THROUGH JUNIOR INTELLIGENCE OFFICE,
NARCOTIC CONTROL BUREAU, COCHIN,
REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031
BY ADV SRI.RAJAGOPALAN NAIR.K.R., CGC
R1 BY SRI.C.P.UDAYABHANU
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.12.2023, THE COURT ON 08.12.2023 DELIVERED THE FOLLOWING:
-2-
BA No.10147 of 2023
MOHAMMED NIAS C.P., J.
..................................................
BA No.10147 of 2023
...........................................
Dated this the 8th day of December, 2023
ORDER
This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.
2. The petitioner is the sixth accused in OR No.2/2023 of Narcotic Control Bureau, Cochin, for having committed offences punishable under Sections 8(c) r/w 20(b)(ii)(A), 22(c), 25, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. The prosecution case is that on 24/04/2023, a consignment from Gurugram, Haryana reached Kadavanthra in favour of A1 and on a thorough investigation it was unearthed that A1 to A7 were involved in the despatch and the transportation of LSD having 5.5 grams. After 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 and thereby committed the above offence.
4. Earlier, an application filed by the petitioner was dismissed, after -3- BA No.10147 of 2023 detailed consideration,interalia, of the contentions regarding the violation of S.42, the illegality of the arrest,the claim for parity as bail was granted to other accused, by order dated 25.10.2023 in BA No.8094/2023. Learned counsel for the petitioner, Sri. Babu S Nair submits that a complaint has been filed and the materials clearly show that the amount transferred to the account of the petitioner was done for and on behalf of A7. There is no proof or any transaction through dark-net as alleged, no recovery was made from the petitioner, there is violation of the compliance of Section 42 and 50 of the NDPS Act, all other accused are on bail, there are no materials to connect the petitioner in the crime, there is two days delay in preparing the seizure mahazar, the parcel was put from Gudgavu, the petitioner was neither the sender nor the addressee. He also argues that not granting bail to the petitioner will give wrong signal to the Trial Court, which can prejudice him in trial.
5. Learned counsel appearing for the respondent has filed a counter opposing the bail application and reiterated the contention stated therein. The relevant portion of the report is extracted hereunder:-
A person namely Jithin Cherian A-9, Malayali, who is the owner of Echoes of Nature, where the Accused- 6/Petitioner used to stay in Himachalpradesh had been arrested in connection with another LSD drugs case thus clearly show that the Accused- 6/Petitioner along with Jithin Cheriyan A-9 and others had been running this pan India drugs trafficking network for more than 03 years together from Himachal. The petitioner is the one who got -4- BA No.10147 of 2023 fund to arrange the drugs moreover the Accused- 6/Petitioner only placed the drugs order through dark web. He is one of the Kingpins of this drugs trafficking syndicate who made lot of young Indian youths addicted to drugs. The Accused-6/Petitioner initially was arrested on the basis of voluntary statement and other corroborative evidences. However, during the investigation it has come to light that the Accused- 6/Petitioner had received more than Rs 40,00,000/- (Forty Lakhs) which had been specifically used for drugs trafficking. The Accused-6/Petitioner is the one who used to receive drugs fund in his bank account from various drugs peddler from India then he placed the consolidated drugs order using darkweb. Apart from all the above, while the Accused-6/Petitioner was questioning by the NCB, Officer, the Accused-6/Petitioner sent a text message to Joel Jiju Varghese phone number saying that "Bust Aayi" that itself prove that since his syndicate had busted, he was alerting Joel Jiju Varghese (A-7) to abscond, which clearly prove his involvement in the crime. The printout of the "Bust Aayi message had been submitted before the Hon'ble Court.
4.That the contents of para- 07 of the bail petition is not admitted. The respondent analyzed the Accused-6/Petitioner's Federal Bank Savings Ac No. 99980114974657, statement copy hereby produced and marked as Annexure-II, when it has come to light that the Accused-6/Petitioner made transaction for Rs.
41,96,512.73 (Forty One Lakh Ninety Six Thousand Five Hundred and Twelve) from his Federal Bank Account No. 99980114974657 w.e.f. 01/01/2022 to 25/04/23 (within 16 months) @Rs 3,00,000/- (Three Lakhs) per month in the other hand he has no job which arouse strong suspect from the account whereas his accomplices -5- BA No.10147 of 2023 none having those much transaction like the Accused-6/Petitioner had and also it is noticed from the Accused-6/Petitioner bank statement that he receiving a lot of amount from his accomplices bank account and other Kerala Based bank account further converting those into Crypto Currency through Binance App, as such, he made 26 transaction with Joel Jiju Varghese (A-7), out of the 26 transaction he received around Rs. 1,10,000/- (one lakh ten thousand) from Joel Jiju Varghese (A-7) whereas, the Accused- 6/Petitioner deposit money into Joel Jiju Varghese (A-7) for around Rs 15,000/- which clearly shows that Accused-6/Petitioner is the one who was ordering drugs on Darknet by paying Crypto Currency, hereby produced Crypto Currency Transaction details provided by Binance and copy hereby produced marked as Annexure-III. Then, Jacob George (A-5) SBI account No.39013012644, analyzed when it has come to light that the Accused 6/Petitioner made 17 transactions for Rs 91,000 (ninet- One Thousand) those also used for merely drugs trafficking. In the Federal Bank Account of the Accused-6/ Petitioner some suspect cash depositing through CDM found which were done by Harikrishnan M( A-8), after receiving those funds from a person whom the Accused-6/Petitioner directed for buying the seized drugs those CCTV visuals were obtained from Federal Bank Authorities and hereby produced before the trial court along with the complaint. In the contrary in Accused6/Petitioner's voluntary statement he revealed that the amount Rs.2,98,500/- (Two Lakhs Ninety Eight Thousand Five Hundred) CDM deposit, the details of those are as followed (1) on 07/4/2023 Rs.48,500/-. (2) on 08/04/2023 Rs.2,50,000/- were arranged by Joel Jiju Varghese (A-
7) but not by Harikrishnan M (A-8), which is the complete -6- BA No.10147 of 2023 intention to distract the investigation of this case thereby evade legal action against him as well as increase the gravity on others who don't commit such things which itself offence. On scrutinizing, the Binance, Case team shared information, of the Crypto Wallet ID address of the Accused-6/Petitioner, it is found that the and the Accused-6/Petitioner has done Rs.26,27000/- (Twenty-Six Lakhs and twenty Seven Thousand) transaction by using his Federal Bank Account within the short period. It is also found that the amount which were sent by Harikrishnan (A-8) through CDM fully utilized for converting INT into Crypto Currency and eventually utilized for buying the seized drugs. The beneficiary Crypto ID of the Accused-6/Petitioner for Rs.2,40,000/- which were done in pursuance of the money received from Harikrishnan M (A-8) through CDM, the wallet ID login places co-ordinates of the Petitioner were obtained which is also substantiate the Accused-6/petitioner's placed the drugs order from Himachal as stated by his co-accused Joel Jiju Varghese (A-7), and Jithin Cherian (A-9). As per our investigation evidences, the Accused-6/petitioner purchased the drug from Naveen Fogat (Accused-10) and the parcel was sent by Jithin Cheriyan (Accused-9). Currently Both Jithin Cheriyan (Accused-9) and Naveen Fogat (Accused-10) are jailed at Tihar Jail in connection with NCB, Delhi LSD case and the same drugs was bought by the Accused-6/petitioner on Dark web and Joel Jiju Varghese (A-7), played the role hatching the conspiracy to trafficking the drugs and arranged many of his known drugs abusers to transshipping it.
6. It is also pointed out by the respondents that compliance with -7- BA No.10147 of 2023 Section 50 of the NDPS Act was not required as the contraband article was not in the physical possession of the concerned accused. Learned counsel pointed out there is no change in circumstances after the first dismissal order to grant bail to him. It is also pointed out that the earlier bail application was rejected by this Court on 25.08.2023 and that the final report was filed just before that, the same was not brought to the notice of this Court. Considering the fact that the petitioner had financial transactions with most of the accused, as is relevant from the statement above extracted it cannot be said at least prima facie that the petitioner had no role in the crime. The contention regarding Section 42 compliance is also considered in the first order rejecting bail. The argument on parity with other accused was also considered in paragraph 9 of the order.
7. It is also relevant to note that in the objection filed by the respondent, opposing the bail application filed by Accused No 7, Joel Jiju, the details of the financial transactions of lakhs of Rupees he had, were never mentioned nor his transactions with this accused. It is not known as to whether they were unearthed at that point of time. It is also submitted by the learned counsel for the respondents that the order granting bail to A5 by the Sessions Court is under challenge before this Court. I also notice the contentions of the learned counsel for the respondent that the statement of the petitioner under Section 67 would clearly show that he was aware that he was dealing with contraband. The relevant portion of the statement is extracted hereunder:- -8- BA No.10147 of 2023
On being asked, I state that, I accepted that there is LSD in the parcel and I state that, I came to collect the LSD parcel to help my friend Joel Jijo. I state that, the phone number of Joel Jijo 9150306912, as saved in my mobile phone from which he was calling me. He has called me up and messaged me only on Whatsapp in these two days for communicating about this LSD Parcel. Whenever communicating about drugs we immediately delete all calls and messages. 1 and Keshav have not communicated with each other Then, you issued me summons under Sec. 67 of the NDPS Act, 1985 and explained the provisions of the same to forthwith appear before you at NCB Office Cochin and I told that 1 will come following your team to your Office, in our Innova Car. Accordingly, when I reached Kendriya Bhavan you and your team conducted search of Jacob's Innova Car where 80 grams Ganja was found and you seized it. You prepared a Mahazar as it is as the procedure was done in my and witness' presence. You explained the contents of the Mahazar and provided a copy also.
8. Under the above circumstances, I hold that there is no change in circumstances warranting a different view. It is trite that the length of the period of custody or the fact that the charge-sheet has been filed or that the trial has commenced are by themselves no consideration that can be treated as grounds for granting bail disregarding the conditions under Section 37 of the NDPS Act. The limitations placed under Section 37 of the NDPS Act are over and above those under Section 439 of the Cr.P.C. None of the arguments made would make me hold that there are -9- BA No.10147 of 2023 reasonable grounds to believe that the petitioner is not guilty of the offences. As regards the argument of the learned counsel for the petitioner that not granting bail to the petitioner would send wrong signal which can prejudice him in the trial, I am afraid the apprehension is without any basis. All the observations made in the orders rejecting bail are only for the purpose of consideration of the bail applications and it will be open to the petitioner to take up all contentions under law at the trial. Learned counsel for the petitioner submits that the matter is now posted before the court concerned on 13.12.2023 and he intends to file an application seeking discharge. If such an application is filed, it will be considered by the trial court untrammelled by any of the observations made in this order and in accordance with law. Orders will be passed on the application seeking discharge within three weeks of the first date of hearing.
Subject to the above, the bail application is dismissed.
Sd/-
MOHAMMED NIAS C.P. JUDGE dlk/7.12.2023 -10- BA No.10147 of 2023 APPENDIX OF BAIL APPL. 10147/2023 PETITIONER'S ANNEXURES Annexure A A TRUE COPY OF THE OCCURRENCE REPORT IN O.R.NO.2/2023 OF THE NARCOTIC CONTROL BUREAU, COCHIN DATED, 28-4-2023 Annexure B A TRUE COPY OF THE VOLUNTARY STATEMENT OF THE PETITIONER DATED, 25-4-2023 UNDER SECTION 67 OF THE NDPS ACT Annexure C A TRUE COPY OF THE ORDER IN B.A.NO.5302/2023 OF THIS HON'BLE COURT DATED, 25-9-2023 Annexure D A TRUE COPY OF THE ORDER IN B.A.NO.8094/2023 OF THIS HON'BLE COURT DATED, 25-10-2023