Kerala High Court
Shahid vs State Of Kerala on 19 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944
BAIL APPL. NO. 4880 OF 2022
CRIME NO.18/2022 OF Palakkad Excise Range Office, Palakkad
PETITIONER/ACCUSED NO.2:
NOUFAL,AGED 33 YEARS,S/O MOIDHEEN HAJI,
PARAMMAL HOUSE, CHANKUVETTY DESOM,
KOTTAKKAL VILLAGE, TIRUR TALUK,
MALAPPURAM DISTRICT, PIN - 676501
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
R.GAYATHRI
SADIK ISMAYIL
M.MAHIN HAMZA
SAFIYA AKBAR
FAIZEL K.
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 ASSISTANT EXCISE COMMISSIONER
EXCISE RANGE OFFICE, KODUMBA,
PALAKKAD DISTRICT., PIN - 678551
BY PP SRI.K.A.ANAS
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.10.2022, ALONG WITH Bail Appl..5266/2022, 6153/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos.4880, 5266 & 6153 of 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944
BAIL APPL. NO. 5266 OF 2022
CRIME NO.18/2022 OF Palakkad Excise Range Office, Palakkad
PETITIONER/ACCUSED NO.3:
SHAHID,AGED 27 YEARS,S/O.HAMSA,
KALLANKUNNU HOUSE,
KOTTAKKAL VILLAGE, THIRUR TALUK,
MALAPPURAM DISTRICT., PIN - 676503
BY ADV NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY PUBLIC PROSECUTOR SRI.K.A.ANAS
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.10.2022, ALONG WITH Bail Appl..4880/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos.4880, 5266 & 6153 of 2022 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944
BAIL APPL. NO. 6153 OF 2022
CRIME NO.18/2022 OF Palakkad Excise Range Office, Palakkad
AGAINST THE ORDER/JUDGMENTCRMP 1400/2022 OF III ADDITIONAL
DISTRICT COURT, PALAKKAD / II ADDITIONAL MACT, PALAKKAD
PETITIONER/1ST ACCUSED:
FASIL FIROS MOHAMMED ALI,S/O.MOHAMMED,
KONGADAN HOUSE,AMAPPARA, KOTTAKKAL P. O.,
MALAPPURAM - 676 501.
BY ADVS.
JAYKAR.K.S.
G.BALU
M.RAMYA RAMACHANDRAN
ATHULYA M.
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALAREPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA,
ERNAKULAM - 682 031
2 THE EXCISE INSPECTOR,PALAKKAD EXCISE RANGE OFFICE,
MARUTHA ROAD, KODUMBA,PALAKKAD - 678 551.
BY PP SHRI K.A.ANAS
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.10.2022, ALONG WITH Bail Appl..4880/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.Nos.4880, 5266 & 6153 of 2022 4
VIJU ABRAHAM, J.
.................................................................
B.A.Nos.4880, 5266 & 6153 of 2022
.................................................................
Dated this the 19th day of October, 2022
ORDER
These are applications for regular bail.
2. B.A. No. 6153 of 2022 is filed by the 1 st accused whereas B.A. No. 4880 of 2022 is filed by the 2nd accused and B.A. No. 5266 of 2022 is filed by accused no.3 in Crime No.18 of 2022 of Palakkad Excise Range, now pending as S.C. No.529 of 2022 on the files of the Addl. Sessions Judge III, Palakkad. The said case is registered and charge-sheeted for offences under Sections 8(c), 20(b)(ii)C, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "NDPS Act.")
3. The prosecution case is that on 18.03.2022 at 6.00 a.m. accused 3 in numbers were found in possession of 170 kgs of ganja in a lorry bearing registration No.KL-29/J-6664 at Walayar Excise Check Post, Palakkad and the accused thereby committed the aforesaid offences.
4. The contention of the petitioner in B.A. No. 6153 of 2022 is that he has been falsely implicated in the above-said crime. He was the RC owner of the offending vehicle, but had no knowledge about the B.A.Nos.4880, 5266 & 6153 of 2022 5 contents in his carriage. Though he moved an application for bail before the Sessions Court, the same was rejected by Annexure A1 order.
5. The petitioner in B.A. No.4880 of 2022 raised the following contentions: The lorry is owned by the 1 st accused, and a lorry cannot be termed as a public conveyance and therefore going by the decision in Boota Singh v. State of Haryana, 2021 (3) KLT 105, the mandatory procedure under Section 42 of the NDPS Act has to be complied with. The position being so, search without a warrant or without preparing a ground of belief and without forwarding the same to the superior officer is illegal. Petitioner also relies on the judgment in Sarija Banu (A) Janarthani v. State, (2004) 12 SCC 266. Further contention of the petitioner is that sampling was done in violation of Standing Order No.1/1989 issued by the Govt. of India and therefore the sampling done is illegal in as much as representative samples were not taken from each packet. To drive home the point, the petitioner relies on Amani Fidel Chris v. NCB, 2020 KHC 4493. It is also contended that in the case of ganja, only the flowering part of the said plant can be termed as contraband and in the present case the whole of the contraband was treated as one without separating the flowering top.
6. The contention of the petitioner in B.A. No.5266 of 2022 is that the petitioner has no conscious possession and submits that to constitute possession, the petitioner should have full domain or control B.A.Nos.4880, 5266 & 6153 of 2022 6 over the article, and the petitioner relies on the judgment in Suresh v. State of Kerala, 2020 (2) KLD 125 and Sajeevan v. State of Kerala, 2020 (6) KLT 53. Petitioner further submits that there is violation of statutory prescriptions and this court can consider those while considering the bail application. Petitioner relies on the judgment in Basanth Balram and another v. State of Kerala, 2019 (1) KHC 667. Petitioner also relies on the judgment in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, to contend that the confession statement of an accused is totally inadmissible. Petitioner has a further case that recoveries were not effected in the presence of a gazetted officer and therefore there is violation of Section 50 of the NDPS Act.
7. Learned Public Prosecutor seriously opposed the application for bail mainly contending that 170 kgs of dry ganja was seized from the lorry in which all the petitioners were travelling together and they were arrested on the spot along with the contraband, and therefore the petitioners cannot contend that they were not in conscious possession. Learned Public Prosecutor further contended that the decision in Boota Singh's case is not applicable in the present case in as much as the vehicle involved in that case was not a public transport vehicle, whereas in the present case, the search was conducted in a public place in a public conveyance. He relies on the judgment in State of Haryana v. Jarnail Singh, 2004 KHC 710. The learned public B.A.Nos.4880, 5266 & 6153 of 2022 7 prosecutor further contended that since the alleged contraband was not seized from the body of the person, provisions of Section 50 of the NDPS Act need not be complied with. It is also submitted by the learned public prosecutor that even the legal position is so, a written intimation was given to the petitioners herein regarding the legal right to be searched in the presence of a gazetted officer or a Magistrate, and the petitioners have given a written reply to the effect that they need not be searched in the presence of a gazetted officer. The learned public prosecutor also submitted that a report under Section 42(2) of the NDPS Act was also forwarded to the Superior Officer. The learned public prosecutor further submits that there is absolutely no procedure violation mandated in Standing Order 1/1989. The learned Public Prosecutor further submitted that even going by the definition of "ganja" in the Act, the contention that in the case of ganja only flowering top can be considered as contraband is absolutely without any basis.
8. Heard the counsel for the respective petitioners and learned Public Prosecutor and also perused the case diary. Admittedly, contraband of commercial quantity was seized from a public transport vehicle, and the petitioners were apprehended along with the contraband. In the said factual situation, prima facia I do not find any merit in the contentions of the petitioners that they are not in conscious possession of the contraband. Apex Court had occasion to consider B.A.Nos.4880, 5266 & 6153 of 2022 8 similar issues in Union of India v. Rattan Mallick alias Habul, 2009 (2) SCC 624 and also in Union of India through NCB Lucknow v. Md. Nawaz Khan (2021) 10 SCC 100. Paragraphs 15 and 16 of Rattan Mallick's case supra reads as follows:
15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years, and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-section (1) of Section 37 of the NDPS Act.
16. Merely because, according to the learned Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the learned Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge.
It is also profitable to refer to paragraph 29 of Md. Nawaz Khan's case supra which reads as follows:
29. In line with the decision of this Court in Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831], we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.
In view of the above, prima facie I do not find any merit in the contention of the petitioners that they have no conscious possession of B.A.Nos.4880, 5266 & 6153 of 2022 9 the contraband.
8. Regarding the issue of non-compliance with Section 42 of the NDPS Act, the petitioner relies on the judgment in Boota Singh's case supra. That was a case wherein admittedly the vehicle from which the contraband was seized was not a public conveyance and going by Section 43 of the Act, public place includes any public conveyance etc., and it is in the said circumstance that the Apex Court has held that provisions of Section 42 have to be complied with. The Apex Court in Jarnail Singh's case supra explained the distinction between Sections 42 and 43 and as the alleged contraband was seized from a tanker lorry, the Apex Court held that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between Sunset and Sunrise. The prosecutor would submit that report under Section 42(2) of the NDPS Act was promptly sent to the superior officer. Therefore I find no merit in the contentions of the petitioners.
9. Another contention raised by the counsel for the petitioners is that sampling was done in violation of the provisions of Standing Order No.1/89 issued by the Government of India, especially Clause 2.4 of the Standing Order. The petitioners rely on the judgment in Amani Fidel Chris's case supra which has also referred to Circular No. B.A.Nos.4880, 5266 & 6153 of 2022 10 1/89 and held that drawing of the sample neither confirmed to the procedure prescribed under Section 52-A of the NDPS Act nor under the Standing Orders. The specific contention in Amani Fidel Chris's case is a violation of the procedure prescribed under the Standing Order. Firstly, that is a decision in an appeal against conviction, and going through the judgment, it is seen that acquittal was granted taking into consideration other aspects including non-examination of independent witnesses and further that though the prosecution alleged two different recoveries, the first recovery was disbelieved by the trial court. Further, it is to be seen that the relevant provision in the said standing order which is applicable to the facts of the present case is Clause 2.4 which only says that normally, it is advisable to draw one sample from each packet/container in case of seizure of more than one package/container. Even by a mere reading of the said Clause, it does not appear to be mandatory. Another important aspect to be considered is that even though the appeal against the said judgment was dismissed, the Apex Court has consciously left open the question of law and therefore, the judgment in Amani Fidel cannot be treated as final and conclusive. In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 the Apex Court was considering the effect of taking samples after mixing the contraband and held that merely because different punishments have been prescribed depending on the quantity of the B.A.Nos.4880, 5266 & 6153 of 2022 11 contraband, mixing of two bags will not cause any prejudice to the appellant therein and rejected the contention taken by the appellant therein that police should have taken two samples each from the two bags. This Court in Chandran v. State of Kerala, 2008 (2) KHC 429, though one under the Abkari Act, held that when several bottles were seized, it is not necessary that sample need be taken from each bottle. In view of the above, prima facie I do not find any merit in the contentions of the petitioners.
10. Let me consider further contention of the petitioners that in the case of ganja, only the flowering part of the plant alone can be considered as contraband. The mahazar shows that the contraband is top portion of the plant which consists of leaf, flower, seed and stem and on examining the same and by the smell, the investigating officer found that to be ganja. A bare reading of the definition of ganja in Section 2(iii)(b) of the NDPS Act would include the seeds and leaves of the cannabis plant since the seized ganja was accompanied by the flowering part of the plant. It is profitable to extract Section 2(iii)(b) of the Act, which reads as follows:
"the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated"
It is seen from the seizure mahazar that the contraband seized includes the flowering part and also the seeds and stumps and the leaves of Ganja. So going by the definition of Ganja, seeds and leaves which are B.A.Nos.4880, 5266 & 6153 of 2022 12 accompanied by flowering of fruiting tops of the cannabis plant can be considered as part of the contraband. The Apex Court has reiterated the said position in Shiv Kumar Mishra v. State of Goa through Home Secretary, 2009 KHC 292. A similar view was taken by the Punjab and Haryana High Court in Rajbir and Others v. State of Haryana, MANU/PH/1271/2021. Therefore, the contention of the petitioners that going by the definition in Section 2(iii)(b) of the Act the alleged contraband will not come under the definition of ganja, prima facie appears to be unacceptable.
11. Another contention raised by the counsel for the petitioners is regarding violation of Section 50 of the NDPS Act in as much as body search was not done in the presence of a gazetted officer. First of all, no contraband was seized from the person of the petitioners. A perusal of the case diary shows that written intimation was given to the petitioners regarding the legal right to be searched in the presence of a gazetted officer or a Magistrate and the petitioners have given a written reply to the effect that they need not be searched in the presence of a gazetted officer. In view of the above, the said contention is also unacceptable.
12. The offence alleged against the petitioners is very grave and serious in nature. Since the quantity involved is a commercial one, the rigor of Section 37 of the NDPS Act will come into play. Petitioners B.A.Nos.4880, 5266 & 6153 of 2022 13 could not substantiate by cogent reasons that the twin conditions in Section 37 of the Act are satisfied so as to grant bail.
13. It is also made clear that these prima facie observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits, during the trial.
Since the petitioners are detained for long, there will be a direction to the trial court to expedite the trial of S.C.No.529 of 2022 and complete the same without much delay.
The bail applications are accordingly dismissed.
Sd/-
VIJU ABRAHAM JUDGE cks