The Kerala High Court dismissed common bail applications filed by two accused persons in an NDPS case. The court held that prima facie complicity was established due to proximity with commercial quantity of contraband, attracting the judicial embargo under Section 37 of the NDPS Act.
Bail applications B.A.Nos.9032/2020 & 524/2021 were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942
Bail Appl..No.9032 OF 2020
CRIME NO.50/2020 OF E.E & A.N.S.S., PALAKKAD
PETITIONER/ACCUSED NO.4:
JOSEPH WILSON, AGED 21 YEARS, S/O WILSON, ALUVATHINGAL HOUSE , KURINCHIDAM,MANNUTHI, THRISSUR PIN-680688
BY ADV. SRI.VISHNUPRASAD NAIR
RESPONDENT/STATE:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031
OTHER PRESENT:
SMT.V.SREEJA - PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.02.2021, ALONG WITH Bail Appl..524/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.Nos.9032 OF 2020 & 524 OF 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942
Bail Appl..No.524 OF 2021
CRIME NO.50/2020 OF E.E & A.N.S.S., , PALAKKAD
PETITIONER/ACCUSED:
MALAICHAMI, AGED 29 YEARS, SON OF ATHIMOOLAM, 144 OF 5, NORTH STREET, SEYYAKALATHUR, MAANAMADHURAI, SHIVAGANGA, TAMILNADU PIN-630606 BY ADV. SRI.K.ANAND
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031 2 THE EXCISE CIRCLE INSPECTOR, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, PALAKKAD PIN-678001 R1 BY PUBLIC PROSECUTOR R1-2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SMT.V.SREEJA - PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.02.2021, ALONG WITH Bail Appl..9032/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.Nos.9032 OF 2020 & 524 OF 2021
3
COMMON ORDER
Dated this the 19thday of February, 2021
APPLICATIONS FOR REGULAR BAIL
The applicant in B.A. No.9032/2020 is the 4thaccused,
while the applicant in B.A. No.524/2021 is the 2ndaccused in
Crime No.50/2020 of Excise Enforcement and Anti Narcotic
Special Squad, Palakkad, for having allegedly committed
offences punishable under Sections 20 (b) (ii) (C), 29 and 63 of
the Narcotic Drugs and Psychotropic Substances Act, 1985, for
short the (“NDPS Act”). The prosecution case, in brief, is this:
2.On 22.09.2020, on getting information that a lorry was
being piloted by a car and were transporting ganja, the Excise
Circle Inspector intercepted a lorry bearing registration
No.TN-39BW-6339 and on inspection recovered 65.70 Kgs of
ganja. A1 was the driver, while A2 was the cleaner, who was
assisting him. They were immediately arrested. A Chevrolet Car
bearing Registration No. KL-8-BA-2197 was allegedly piloting the
B.A.Nos.9032 OF 2020 & 524 OF 2021
lorry and was found with the lorry and that too was intercepted
and on questioning the occupants of the lorry, who are accused
Nos. 3 & 4, it was revealed that they too were involved in the
alleged transportation of ganja, although nocontraband articles
were seized from the car. The 4thaccused claims that he was
only the driver of the car, which is owned by one Mr.Binoy and as
instructed by Binoy, he had gone to pick up the 3rdaccused from
Coimbatore and therefore, he did not know anything about the
transporting of ganja in the lorry and he was also not piloting the
lorry as alleged. There was no contraband seized from the lorry
or from the possession of the 4thaccused and therefore he claims
to be innocent and submits that there are no materials which
would prove his complicity in the matter and therefore there are
reasonable grounds to believe that he is innocent. And, hence,
he may be released on bail.
3.As far as the 2ndaccused is concerned, he claims to be
the cleaner of the lorry and he too states that he is totally
ignorant about the storing of narcotic drugs inside the chamber
of the lorry. It isadmitted that he was in that lorry and was
B.A.Nos.9032 OF 2020 & 524 OF 2021
5
accompanying the driver. But, he states that he has no criminal
antecedents and that he is not aware of the transportation of the
lorry and therefore he too submits that there is no materialto
prove his complicity and there are reasonable grounds to believe
that he is not guilty and since he did not have any antecedents,
there are no reasonable grounds to believe that he would commit
offences of similar nature, if he is released on bail. Under the
circumstances, the applicants seek regular bail since they have
been in custody from the date of interception.
4.Heard the learned counsel appearing for the
applicants and the learned Public Prosecutor. The learned Public
Prosecutor submits that there are sufficient materials to indicate
the involvement of all the four persons who were arrested on the
date of occurrence. It is stated that there were constant phone
calls between the driver of the lorry and the 3rdaccused, who
was travelling in the car. 34 calls were made between them. It is
also established that the lorry and the car were travelling
together, which also indicates that they were in closeproximity
and there is every possibility that they were consciously
B.A.Nos.9032 OF 2020 & 524 OF 2021
6
transporting ganja in the lorry.
5.Under the circumstances, the learned Public
Prosecutor states that there are no grounds to believe that the 4th
accused was only a driver and that the 2ndaccused was only a
cleaner and that they were not aware of the alleged
transportation of ganja. Even if what is stated by A2 and A4
regarding their ignorance of the contrabandbeing concealed in
the lorry, it is a matter of evidence which needs to be considered
during trial. And, hence, for the purpose of bail and for the
purpose of the embargo under Section 37 (I) (ii) b of the NDPS
Act, there are no grounds to find that the applicants are not
guilty and hence, the bail applications may be dismissed submits
the learned Public Prosecutor.
After having considered the entire submissions made
by the learned counsels appearing for the applicants as also the
learned Public Prosecutor and on going through the records
available, I find that prima facie, complicity of the applicants is
established because they were in close proximity with the
contrabandwhich is of commercial quantity. And, therefore, the
B.A.Nos.9032 OF 2020 & 524 OF 2021
7
embargo under Section 37 of the NDPS Act would be attracted.
Whether the applicants did not have any role in the alleged
transportation of contraband is a matter of evidence which has to
be decided by the trial court. And, therefore, I find that it is not
appropriate for a bail court to decide on the matter of guilt of the
applicants at this point of time.
Hence, the applications are both dismissed.
Sd/-
ASHOK MENON
JUDGE
NR/19/02/2021
2 issues framed by the court
Whether embargo under Section 37 of NDPS Act is attracted in view of complicity of applicants established prima facie.
Whether bail applications should be decided based on prima facie complicity pending trial determination of guilt.
1 provisions across 1 enactments
JOSEPH WILSON
MALAICHAMI
STATE OF KERALA
ASHOK MENON
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court