Kerala High Court
Aymen Ahammed vs State Of Kerala on 2 November, 2018
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
N THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940
Bail Appl..No. 6621 of 2018
CRIME NO. 722/2018 OF CANTONMENT POLICE STATION,
THIRUVANANTHAPURAM
PETITIONERS/ACCUSED NOS.1-3:
1 AYMEN AHAMMED
AGED 24 YEARS
S/O. AHMMED SYED, GDH,
THINATHOOKASTHOORISE - MALDIVES
2 SHANIZ MAHEER,
AGED 27 YEARS
S/O. EBRAHIM MAKEER,
HITHATHOO LOVELY STAR-MALDIVES,
3 EBRAHIM FOWSAN,
AGED 29 YEARS
S/O. SALIHU, GDH,
THINATHOOKANEEVILLA, MALDIVES.
BY ADV. SRI.P.K.VARGHESE
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SMT.REKHA C.NAIR, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.11.2018,
ALONG WITH Bail Appl..6525/2018, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
B.A.Nos.6621 & 6525 of 2018 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940
Bail Appl..No. 6525 of 2018
CRIME NO. 722/2018 OF CANTONMENT POLICE STATION,
THIRUVANANTHAPURAM
PETITIONER/4TH ACCUSED:
AMHAR RASHEED,
S/O ALI RASHEED,
THINATHOO KAMIYABU GDH,
MALDIVES
BY ADVS.
SRI.J.R.PREM NAVAZ
SRI.P.T.SHEEJISH
RESPONDENT/STATE:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM 682031
BY SMT.REKHA C.NAIR, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
02.11.2018, ALONG WITH Bail Appl..6621/2018, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
B.A.Nos.6621 & 6525 of 2018 3
ORDER
These applications are filed under Section 439 of the Code of Criminal Procedure.
2. The applicants in B.A.No.6621 of 2018 are the accused Nos.1 to 3 and the applicant in B.A.No.6525 of 2018 is the 4 th accused in Crime No.722 of 2018 of the Cantonment Police Station registered under Section 20(b)(ii)(C) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. The Inspector of Police, Cantonment Police Station, received information that certain persons have secreted Narcotic substances in Room No.423 of Hotel Residency Tower at Thiruvananthapuram. The said information was reduced into writing and the same was conveyed to his Superior Officer, the Assistant Commissioner of Police, Cantonment Sub Division. A search warrant was obtained from the learned Magistrate and the hotel room was raided at 11.30 am on 4.6.2018, after observing all statutory formalities. Three persons of Maldivian descent were found inside the room. Search in the presence B.A.Nos.6621 & 6525 of 2018 4 of the Gazetted Officer and witnesses yielded in the detection of Hashish Oil from their possession. From the 1 st accused, 3.510 kgs, from the 2nd accused, 2.860 kgs, and from the 3 rd accused, 10.160 kgs were seized. The total quantity of Hashish Oil seized was 16.530 kgs, which is worth several Crores in the International Market. The contraband was sampled and sealed as per law. The accused were arrested and they were later produced before the jurisdictional court and were remanded.
4. Due to the magnitude of the seizure and the serious nature of the offence, the investigation was handed over to the Assistant Commissioner of Police, Narcotic Cell, Thiruvananthapuram. The custody of the accused was later obtained. They, however, maintained a tight lip and did not reveal either the source of the contraband or the network of their operation. Investigation also revealed that they were using digital equipments to communicate with each other to maintain confidentiality and secrecy.
5. The cell phone details revealed that they had travelled in a Uber Taxi and when the driver was questioned, it was revealed that they had contacted the 4th accused and had a rendeavouz outside the B.A.Nos.6621 & 6525 of 2018 5 Beverah Hotel, Kumarapuram. The said accused was summoned and he was questioned. Investigation revealed that the narcotic substances were handed over to the 4th accused by the 5th accused, who is also a Maldivian citizen, and that the 4 th accused had retained it in his possession with the full knowledge that it was a prohibited narcotic substance. The 4th accused was then contacted by the 1st accused and they had met in front of Beverah Hotel. They booked a taxi and went to the place of residence of the 4 th accused and the bag was handed over to the 1st accused by the 4th accused after receiving USD 200. For his involvement, the 4th accused was roped in and he was arrested on 29.06.2018.
6. According to the prosecution, the investigation revealed that the narcotic substances were sourced by the 5th accused from some unknown source and the same was handed over to the accused Nos. 1 to 3 through the 4th accused for being clandestinely exported to the Maldives or for sale in India. The accused are having close nexus with the international drug dealers and the arrest of the 5 th accused is imperative to have a clear idea of their network of operation of the drug traffickers.
B.A.Nos.6621 & 6525 of 2018 6
7. The learned counsel appearing for the accused Nos.1 to 3 would contend that they are innocent. It is submitted that the applicants have been made a scapegoat by the Kerala Police for reasons best known to them. It is contended by the learned counsel that if the detecting officer and the contemporaneous mahazar prepared by him were to be believed, the search had concluded only at 6.30 p.m and thereafter the accused were taken to the cantonment police station with the seized drugs and the samples. However, the media reported that at 4 p.m. on 4.6.2018, a press meet was held by the Senior Police Officers and they had displayed the contraband before the reporters. This was aired in the local television as well. This would show that the case of the prosecution is false and concocted.
8. The learned counsel appearing for the 4th accused submitted that 4th accused is a student who has been in the State of Kerala for the past 5 years. The entire case of the prosecution is based on the alleged confession given by the co-accused. No reliance could have been placed on the same. According to the learned counsel, even if it is admitted that the 4th accused had retained a bag for 5 days, there are no materials to conclude that he had knowledge or awareness that the bag contained narcotic substances. The learned counsel also B.A.Nos.6621 & 6525 of 2018 7 highlighted that the 4th accused was in India all through and he had not absconded like the 5th accused. The crime was detected on 4.6.2018 and the fact that he had appeared before the Investigating officer on 29.6.2018 on receipt of notice would show his innocence. The 4th accused has been in custody from 29.6.2018 and the materials against him being feeble, it is only just and proper that he be granted bail so that he could pursue his education and lead a good life.
9. The learned Public Prosecutor has fervently opposed the prayer. It is submitted that the challenge posed by rampant drug use has reached alarming proportions. In the instant case, the seizure was effected after a foolproof operation by the Kerala Police. The accused are Maldivian citizens and one of the accused is an internationally known drug dealer. Information was received from the Central agencies that narcotic substances were being exported on a large scale from India by various modes. On the basis of the said secret information, the accused were being kept a close watch. The seizure was affected after observing all statutory formalities. At 4 p.m., the higher police officials had appraised the media personnel who had visited the police station about the seizure of drugs which took place at 11 am and was still continuing. During the press meet, demo materials B.A.Nos.6621 & 6525 of 2018 8 used for teaching police personnel were exhibited to answer the varied queries put by the reporters. It is submitted that the allegation that the accused were also present and the drugs were exhibited before the police are all frivolous allegations without any basis.
10. The learned Public Prosecutor would further contend that the investigation is still in the early stages and a deeper probe is being conducted to assess the source of the contraband and the network of operation of the applicants. It is urged that the parameters laid down in Section 37 of the NDPS Act, 1985 will have to be satisfied as the quantity seized is commercial in nature. Highlighting the deleterious effects and deadly impact of the substance seized from the possession of the applicant, it is submitted that the legislature has included Section 37 in the Statute Book to deter such nefarious activities by traffickers such as the applicant. The learned Public Prosecutor referred to the decisions of the Apex Court in Union of India (UOI) v. Shri Shiv Shanker Kesari [(2007) 7 SCC 798] and Union of India v. Ram Samujh and Another [(1999) 9 SCC 429] to support his contentions.
B.A.Nos.6621 & 6525 of 2018 9
11. I have considered the submissions advanced and have gone through the materials on record.
12. The jurisdiction of the court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. Bail can be granted in a case where 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. It is the mandate of the legislature which is required to be followed. The expression used in Section 37(1)(b)(ii) of the Act is "reasonable grounds" which 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 themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 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. For that purpose, the court is not required B.A.Nos.6621 & 6525 of 2018 10 to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also 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 conclusion.
13. The main contention advanced by the learned counsel appearing for the accused Nos.1 to 3 is that the during the press meet conducted by the superior police officers on the date of detection at 4 p.m., the drugs were presented before the press. No attempt has been made by the applicants before this Court to substantiate the said contention. Certain paper clippings and a compact disc of a TV program is flaunted by the learned counsel to substantiate the said contention. Having gone through the case diary and the sequence of events, I do not think that the contention is advanced with any sort of conviction. Mere assertions at the time of arguments will not be sufficient to displace the presumption attached to the lawful and regular discharge of official duties by the detecting officer. As held by the Apex Court in Narcotic Control Bureau v. Palsamy [AIR 2000 SC 3661], Courts are bound to take into account the factual presumption in law that official acts have been regularly performed. B.A.Nos.6621 & 6525 of 2018 11 Such presumption cannot be rebutted by merely raising certain contentions based on non existent materials.
14. The contention of the learned counsel appearing for the 4 th accused that there are no materials against him also cannot be accepted at this stage. The case diary shows that the large quantity of narcotic substances were entrusted with him by the 5 th accused and the same was retained by him for the purpose of handing it over to the 1st accused.
15. The case records show that huge quantity of Hashish Oil was sourced by the accused from some quarters and the same was seized from the possession of accused Nos. 1 to 3. As to whether the drugs were amassed for the purpose of distributing in India or whether it was for the purpose of smuggling to Maldives or any other foreign country will be revealed only after a detailed investigation. The illegal trafficking of narcotic drugs and psychotropic substances is a case for concern. It is for checking the menace of drugs flooding the market that the Parliament has brought Section 37 of the NDPS Act in the Statute book. The mere fact that the applicants have been in custody for over 90 days is not a reason to grant them bail. Though the liberty of an individual is sacrosanct, but every individual has the duty, B.A.Nos.6621 & 6525 of 2018 12 responsibility and obligation to see that he does not violate the laws of the land. The act committed by the accused is something, which adversely affects the entire society, including the lives of innocents and adolescents, and cannot be lightly seen.
16. Having considered the submissions advanced and after going through the materials on record, I am afraid that there are no substantial probable causes for believing that the accused are not guilty of the offence charged. It would not be possible to conclude that they are not likely to commit any offence while on bail. 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 they are not guilty of the offence charged.
These applications are dismissed.
SD/-
RAJA VIJAYARAGHAVAN V.,
JUDGE
IAP //TRUE COPY// P.A. TO JUDGE