Partly allowed

Kunjumoideen @ Nisar v. State of Kerala

Kerala HC3 Aug 2021Bail Appl./4663/2021

Case brief

AI extract

What is this about?

Single judge held Section 36A(4) extension order invalid due to lack of notice to accused, granting statutory bail to petitioners who completed 180 days custody. Bail dismissed for 5th accused who completed only 150 days and had active involvement in commercial narcotic transport.

What did the court decide?

BA No. 3148 and 4663 allowed with bail conditions; BA No. 4185 dismissed for 5th accused.

Kunjumoideen @ Nisar Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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TUESDAY, THE 3^RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 BAIL APPL. NO. 3148 OF 2021

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CRIME NO.1393/2020 OF ANGAMALI POLICE STATION, ERNAKULAM

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PETITIONER/ACCUSED:

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CHANDU AGED 22 YEARS S/O.SUNIL, AREECKAL HOUSE, KUTUPARAKARA, VELLATHUVAL, DEVIKULAM, IDUKKI, PIN - 685563 BY ADV K.R.SUNIL

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY SR. PUBLIC PROSECUTOR SRI.SANTHOSH PETER

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28.07.2021 ALONG WITH BA NOS.4185/2021 & 4663/2021, THE COURT ON 03.08.2021 DAY DELIVERED THE FOLLOWING:

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BA Nos.3148, 4185 & 4663 of 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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TUESDAY, THE 3^RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943

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BAIL APPL. NO. 4185 OF 2021

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CRIME NO.1393/2020 OF ANGAMALI POLICE STATION, ERNAKULAM

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PETITIONER/5TH ACCUSED:

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ANSAR

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AGED 33 YEARS SON OF MOHAMMED, PALAKKUZHAYIL HOUSE, PERUMPILLICHIRA P.O., KUMARAMANGALAM VILLAGE, THODUPUZHA, IDUKKI DISTRICT, PIN-685 581.

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BY ADV K.NIRMALAN

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RESPONDENTS/STATE & COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT P.O., ERNAKULAM-682 031.

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2 DEPUTY SUPERINTENDENT OF POLICE, NARCOTIC CELL, ALUVA, ERNAKULAM RURAL, PINCODE-683 101, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT P.O., ERNAKULAM.

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BY SR. PUBLIC PROSECUTOR SRI.SANTHOSH PETER

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28.07.2021 ALONG WITH BA NOS.3148/2021 & 4663/2021, THE COURT ON 03.08.2021 DAY DELIVERED THE FOLLOWING:

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BA Nos.3148, 4185 & 4663 of 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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TUESDAY, THE 3^RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 BAIL APPL. NO. 4663 OF 2021

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CRIME NO.1393/2020 OF ANGAMALI POLICE STATION, ERNAKULAM

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PETITIONER/2ND ACCUSED:

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KUNJUMOIDEEN @ NISAR AGED 37 YEARS

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S/O.SAID, CHELIKANDATHIL HOUSE, PERUMBILLYCHIRA, NEAR MOSQUE, THODUPUZHA, IDUKKI DISTRICT.

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BY ADV AJEESH M UMMER

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA

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(SHO ANGMALY P.S.), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.

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BY SR. PUBLIC PROSECUTOR SRI.SANTHOSH PETER

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28.07.2021 ALONG WITH BA NOS.4185/2021 & 3148/2021, THE COURT ON 03.08.2021 DAY DELIVERED THE FOLLOWING:

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BA Nos.3148, 4185 & 4663 of 2021

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ORDER

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These are applications filed by accused Nos.3, 5 and 2 respectively in crime No.1393/2020 of Angamaly police station, which was registered alleging offence under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (the NDPS Act for short). The crime was registered after seizure of 103.080 kg of ganja by the Sub Inspector of Angamaly police station on 25.11.2020. That day, at the early hours at 1.30 a.m., on getting reliable information about unauthorised transport of huge quantity of ganja in two vehicles, he proceeded to the TB junction Angamaly and started checking vehicles. On getting information that two cars, i.e. a Hyundai i 10 bearing Regn. No. KL 30 G 3299 and a Maruti Ertiga bearing Regn.No.KL 17 P 6435, are advancing towards Angamaly, he created a fake traffic block by parking a lorry across the road. At that time both the said cars came that way; accused Nos.1 and 2 were travelling in KL 30 G 3299 and the other car was driven by the third accused. They were intercepted and when the vehicles were inspected, the Hyundai i 10 was found travelled by accused

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BA Nos.3148, 4185 & 4663 of 2021

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Nos.1 and 2; 41.130 kg of ganja was found from its dikki whereas 61.950

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kg of ganja was found transported in the other car. This together, i.e 103.080 kg of ganja, was seized from the possession of the accused persons. They were arrested in the presence of independent witnesses and the crime was registered and since then they are in judicial custody.

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As large conspiracy was involved in the procurement and transport of so much quantity of ganja, the investigation was conducted exhaustively and during the course accused Nos.4 to 7 were also arrested, and they are in judicial custody.

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It is understood that the first accused has already been granted regular bail. Accused Nos. 2, 3 and 5 have moved these applications under Section 439, as stated earlier.

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BA No.4663/2021 moved by the second accused was filed on 04.06.2021 invoking Section 439 read with 167(2)(a) of the Cr.P.C. While accused Nos.2 and 3 claim that they are entitled to get regular bail, an added ground has been stated by the second accused in BA No.4663/202. According to him, the order of the learned Additional Sessions Judge, who was in charge of the Principal Sessions Judge, dated 21.05.2021 is bad; it was passed without

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BA Nos.3148, 4185 & 4663 of 2021

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hearing the counsel. That order was passed holding that the remand of the petitioners beyond 180 days is justified since he has granted an extension of period of investigation under Section 36A(4) of the NDPS Act.

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The learned counsel for the petitioners in BA Nos.3148 and 4663 of 2021 have submitted that the said order dated 21.05.2021 is ultravires so long as it was passed behind their back and without intimating them.

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The learned Public Prosecutor has opposed the said argument and also the applications for bail. According to her, from the order itself it is evident that the order was passed after giving copy to the legal aid counsel. According to the learned learned Public Prosecutor, even if it is correct that they were not given notice, they have not challenged the correctness of the order of the Additional Sessions Judge dated 21.05.2021, which is bad. But the learned counsel in BA No.4663/2021 submitted that he had filed a vakalath during the first period of remand itself on 4.12.2020. But he was not given notice before passing an order under Section 36A(4) of the NDPS Act. In this connection, he also relied on the decision reported in Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau and another [2010 KHC 312 : (2009) 17 SCC 631] . The latter argument of the

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BA Nos.3148, 4185 & 4663 of 2021

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learned Public Prosecutor has been challenged by the learned counsel basing on the decision reported in Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence [2020 KHC 6604] . According to him, such an order need not be challenged separately, that they have an indefeasible right to get bail immediately on completion of the statutory period of 180 days; it is true that the order dated 21.05.2021 was passed before completion of 180 days in custody, still on account of non-service of notice on the petitioners itself that order cannot stand and on the date of passing the order their applications for bail were pending before court.

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I will consider BA Nos.4663/2021 and 3148/2021 at the outset

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because both the petitioners were arrested on 25.11.2020 and on 24.05.2021 they had completed 180 days in judicial custody. If the order passed by the learned Sessions Judge on 21.05.2021 is in order and meets the requirements of law, certainly they are not entitled to get statutory bail since the period of investigation stood extended.

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Even though the said contentions touching the correctness of the order dated 21.05.2021 are not incorporated in BA No.3148/2021, the petitioners in the BA Nos.4663/2021 and 3148/2021 are standing on the very

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BA Nos.3148, 4185 & 4663 of 2021

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same pedestal and both the applications can be considered together. As stated earlier, both of them were arrested on 25.11.2020. By 24.05.2021 both of them completed 180 days in judicial custody. That means, by 24.05.2021 if an order proper was passed by the learned Sessions Judge granting extension of the period of investigation, necessarily they are not entitled to get statutory bail as claimed by them. But there is substance in the contention of the learned counsel that the order was passed without giving notice to them. That is evident from the order itself. Paragraph 4 of the order states that notice was given to the Legal aid counsel.

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At the instance of the parties, I have summoned the records leading to the order dated 21.05.2021 and I am convinced that notice was not given to Adv.Ajeesh M. Ummer who had filed vakalath for accused Nos.1 to 3 as early on 01.12.2020. In other words, that order was passed without giving notice to them. Of course, it is shown that notice was given to the Legal aid counsel. But in December 2020 itself accused Nos.1 to 3 had engaged a lawyer of their choice so that, notice given to the legal aid counsel was an idle exercise which does not serve the purpose. This Court in the decision reported in Midhun v. State of Kerala [2021 (4) KLT 421] has made it amply clear that an order

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BA Nos.3148, 4185 & 4663 of 2021

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passed under Section 36A(4) of the NDPS Act without notice to the counsel

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for the accused is bad. That verdict was rendered basing on the decisions in

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Hitendra Vishnu Thakur and others v. State of Maharashtra and others [(1994) 4 SCC 602] and Sanjay Kumar Kedia , cited supra. In Midhun supra, this Court has reiterated that, in order to satisfy the requirements under Section

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36A(4), the following four conditions should be satisfied:

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(1) a report of the Public Prosecutor

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(2) which indicates the progress of investigation

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(3) specifies the compelling reasons for seeking the detention of the

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accused beyond the period of 180 days, and

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(4) after notice to the accused.

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Basing on the decision in Sanjay Dutt v. CBI [(1994) 5 SCC 410] the Court observed that at least oral notice should have been given or the remand extension should have been made in the presence of the accused, so as to validate an order under Section 36A(4) of the NDPS Act. From the order dated 21.05.2021 it cannot be assumed that the order was passed in the presence of the accused or at least oral notice was given. That means, the fourth condition, which is quite important, has not been satisfied and therefore

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BA Nos.3148, 4185 & 4663 of 2021

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the order dated 21.05.2021 passed by the learned Sessions Judge cannot stand

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and, as a necessary corollary, the petitioners in BA Nos.3148/2021 and

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4663/2021 are entitled to be released on bail, as though period for extension of investigation was not granted.

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Moreover, as rightly pointed out by the learned counsel for the petitioners, merely for the reason that the order dated 21.05.2021 is not separately challenged, an indefeasible right to get statutory bail under Section 167(2) read with Section 36A(4) of the NDPS Act cannot be denied to the petitioners. On the expiry of 180 days, such a right becomes due to the accused. Here, the prosecution had not obtained a valid order for extension of period of investigation. After going through the records, I am also doubtful whether a proper report was filed by the Public Prosecutor highlighting the necessity of extension of period of investigation.

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Therefore, the petitioners in both these applications shall be released on bail on the following conditions:-

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i) The petitioners shall execute bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the trial court; one of the sureties shall be a near relative;

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BA Nos.3148, 4185 & 4663 of 2021

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ii) They shall surrender their passports before the Special Court within ten days from their release; if they do not possess passport, an affidavit shall be filed to that effect within that period.

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iii) They shall not leave Ernakulam revenue district till the final report is filed;

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iv) They shall not try to contact or influence the witnesses or tamper with evidence;

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v) They shall not involve in any crime during the period on bail;

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vi) They shall appear before the committal/trial court on all dates of posting of the case;

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vii) They shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19 pandemic;

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viii) If any of the above conditions are violated by the petitioners, the jurisdictional court will be at liberty to cancel the bail in accordance with law.

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The petitioner in BA No.4185/2021 is the 5^th accused who was

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arrested on 04.03.2021. The reasoning stated for releasing the other petitioners i.e. accused Nos. 2 and 3 is not applicable to the petitioner. He has completed

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only 150 days in custody on 31.07.2021 and therefore he is not entitled to get

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BA Nos.3148, 4185 & 4663 of 2021

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statutory bail. On merits also the case of the petitioner does not deserve consideration. The allegation of the prosecution is that it was the petitioner/the 5^th accused who had engaged the 6^th accused, who, in turn, had procured the items and handed over to accused Nos.1 to 3. The learned Public Prosecutor has submitted that there are materials on record to show that he had transferred an amount of Rs.30,000/- on 23.11.2020 from his account to the account of the 2^nd accused through PhonePe. In other words, his involvement in the crime cannot be doubted at this stage. Even though the 5^th accused was not present at the time of seizure of the contraband from accused Nos.1 to 3, his involvement has been brought out through other materials.

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Section 29 was incorporated at the very inception. The contraband is of commercial quantity. The learned Public Prosecutor has strongly opposed the application for bail. There are reasons to think about the active connivance of the petitioner/5^th accused in the illegal transport of so much quantity of ganja. As there are no reasons to find that he is not guilty, the embargo under Section 37 of the NDPS Act comes into play and he is not entitled to be released on bail. Thus BA No.4185/2021 is dismissed.

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