High Court set aside Sessions Court bail order for accused charged with commercial hashish oil under NDPS Act and dismissed bail for pillion rider despite bank transfer links, due to mandatory Sec. 37 compliance.
Bail order dated 31.5.2021 set aside; first accused to surrender. Bail of second accused 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.
BA No.8250/21 & Crl.M.C. No.2854/21
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 21ST DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943
BAIL APPL. NO. 8250 OF 2021
AGAINST THE ORDER/JUDGMENT IN SC 620/2021 OF VI ADDITIONAL DISTRICT
COURT, ERNAKULAM
PETITIONER/S:
DIPEESH AGED 35 YEARS S/O.KUNJAPPAN, ARAYANPARAMBIL HOUSE, MADAPALANTHURATHU KARA, MUTHAKUNNAM VILLAGE, PARAVUR TALUK, ERNAKULAM.
BY ADVS. ANITHA MATHAI MUTHIRENTHY BASIL THOMAS MIDHUN S. KARUN
RESPONDENT/S:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SRI.GRASHIOUS KURIAKOSE, ADGP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.12.2021, ALONG WITH Crl.MC.2854/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA No.8250/21 & Crl.M.C. No.2854/21
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 21ST DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943 CRL.MC NO. 2854 OF 2021
AGAINST THE ORDER/JUDGMENT IN CRMC 1053/2021 OF DISTRICT COURT &
SESSIONS COURT, ERNAKULAM
PETITIONER/S:
THE STATE OF KERALA REPRESENTED BY THE ASSISTANT EXCISE COMMISSIONER (ENFORCEMENT) ERNAKULAM
BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION
RESPONDENT/S:
LIBIN AGED 29 YEARS S/O. ANTONY, KALATHIL HOUSE, KOOTTUKADU, VADAKKUMPURAM KARA, CHENNAMANGALAM VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT,PIN-683 521
BY ADV NIREESH MATHEW, BY SRI.GRASHIOUS KURIAKOSE, ADGP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.12.2021, ALONG WITH Bail Appl..8250/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BA No.8250/21 & Crl.M.C. No.2854/21
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P.V.KUNHIKRISHNAN, J
Crl.M.C. No.2854 of 2021 & B.A. No. 8250 of 2021
Dated this the 21st day of December, 2021
O R D E R
These two cases are connected and therefore, I am disposing these two cases by a common order.
BA No.8250/21 & Crl.M.C. No.2854/21
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also. The 2nd accused was the pillion rider. The accused were arrested on 10.02.2021 and they were in judicial custody. The 1st accused filed a bail application before the Sessions Court, Ernakulam and the bail application was considered by the 1st Addl. Sessions Judge, Ernakulam. The 1st Addl.Sessions Judge granted bail to the petitioner with following observations.
“ 7. The petitioner is aged 29 years. He has no criminal antecedents. The alleged ganja is only intermediate quantity. It is submitted by the learned petitioner's counsel that his client was infected with Covid-19 twice while in jail. The learned counsel has produced annexure A1 bail order of the Hon'ble High Court in B.A. No. 3577/2021 dated 4.05.2021. In a similar case our Hon'ble High Court has granted bail to the accused in that case. Considering the pandemic situation and the guidelines issued by the Hon'ble Supreme Court, the petitioner is granted bail.
In the result, the petition is allowed on the following conditions;
BA No.8250/21 & Crl.M.C. No.2854/21
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Sec. 482 of the Code of Criminal Procedure.
Crime No.7/2021 of Excise Circle Office, North Paravur. The main contention of the 2nd accused is that the 1st accused is already released on bail and hence he also entitled the same benefit. It is also contended by the 2nd accused that no contraband is seized from the physical possession of the 2nd accused and the vehicle is owned by the 1st accused and the contraband articles were seized from the scooter, which belongs to the 1st accused. Therefore, there is nothing to connect the 2nd accused with the crime and therefore, this Court may grant bail to the petitioner. The counsel also submitted that the 2nd accused is in custody for about 10 months and the 1st accused was released on bail by the Sessions Court, Ernakulam on 31.5.2021 and he is free from that day onwards. It is the case of the petitioner that the main allegation is against the 1st accused and as far as the 2nd accused is concerned, the allegation is not that much serious.
BA No.8250/21 & Crl.M.C. No.2854/21 6
BA No.8250/21 & Crl.M.C. No.2854/21 7
4.5.2021 in B.A. No. 3577/2021. Thereafter, the learned Judge observed that since in a similar case, the High Court granted bail to the accused, the accused in this case also can be released on bail.
BA No.8250/21 & Crl.M.C. No.2854/21
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NDPS Act. It will be better to extract Sec.37 of the NDPS Act.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”
that the learned Sessions Judge has not considered the spirit of Sec.37 of the NDPS Act while granting bail to the 1st accused. I am aware that the grounds to grant a bail and grounds to cancel a bail are different. But the allegation against the 1st accused in this case is very serious. Commercial quantity of Hashish Oil is seized from the 1st accused. He was the rider of the scooter. The contraband articles were seized from the
BA No.8250/21 & Crl.M.C. No.2854/21 9
scooter. There is no explanation to the 1st accused about the seizure of this contraband articles from scooter. Of course, these are matters to be decided during the trial. Admittedly, the Prosecutor opposed the bail application and hence the Sessions Judge has not considered the legal impediment under Sec.37 (1) (b)(ii) of NDPS Act. Prima facie, this Court is also not in a position to accept the contention of the 1st accused that he is not guilty of the offence. In such circumstances, according to me, the order dated 31.5.2021 in Crl.M.C. No. 1053/2021 of the 1st Addl. Sessions Judge, Ernakulam is not in accordance to law. Therefore, that is to be set aside.
BA No.8250/21 & Crl.M.C. No.2854/21
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submitted that simply because a person is a pillion rider in a scooter, he cannot be implicated as an accused. At this stage, the learned ADGP handed over the case diary and a document, which is the bank statement of the petitioner in South Indian Bank. In the bank statement, there is evidence to show that the 2nd accused transferred money to the account of the 1st accused on 28.12.2020 on 6.1.2021, 8.1.2021, 14.1.2021, 16.1.2021, 18.1.2021 etc. A total amount of Rs.3,56,000/- is transferred by the 2nd accused to the account of the 1st accused. The ADGP submitted that, that itself shows that there is connection between the 2nd accused and the 1st accused. The ADGP also submitted that these are matters to be proved in the trial and prima facie, there is evidence to show that there is connection between the 2nd accused and the 1st accused. ADGP submitted that in such circumstances, the embargo under Sec. 37 of the NDPS Act is applicable in this case and the bail application may not be entertained by this Court. I think there is some force in the argument of the ADGP. If there is no other evidence except that the petitioner was sitting behind the 1st accused, I might
BA No.8250/21 & Crl.M.C. No.2854/21
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have considered the bail application in favour of the petitioner. But that is not the facts in this case. Here is a case where there is some evidence to connect the 2nd accused with the 1st accused. It is true that the counsel of the petitioner based upon a judgment of the Bombay High Court [order dtd. 28.10.2021 in Criminal Bail Application No.3624/2021] submitted that simply because some money is transferred by the 2nd accused to the 1st accused, there is no presumption that he is involved in the case. According to me, that is also to be considered at the time of trial. I am not in a position to accept the contention of the petitioner. Therefore, the bail application is to be dismissed.
Therefore, these two cases are disposed in the following manner :
SD/-
P.V.KUNHIKRISHNAN, JUDGE
SKS
BA No.8250/21 & Crl.M.C. No.2854/21
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APPENDIX OF CRL.MC 2854/2021
PETITIONER ANNEXURES
Annexure A CERTIFIED COPY OF THE ORDER DATED 31.05.2021 IN CRL MC NO.1053/2021 BY THE SESSIONS COURT, ERNAKULAM
3 issues framed by the court
Whether bail should be granted to an accused charged with possession of commercial quantity of hashish oil under NDPS Act when the prosecutor opposes the application under Sec. 37.
Whether bank transfer evidence between co-accused is sufficient to sustain bail application of a pillion rider in a narcotics trial under Sec. 37 of NDPS Act.
Whether an order granting bail by Sessions Court in a commercial quantity NDPS case can be set aside under Sec. 482 CrPC for non-compliance of Sec. 37 NDPS Act.
Colour shows how this judgement treated each authority
UnreportedDistinguished¶60
B.A. No. 3577/2021 dated 4.05.2021
Bombay High CourtReferred¶83
Criminal Bail Application No.3624/2021 dtd. 28.10.2021
2 provisions across 2 enactments
Dipeesh
Libin
State of Kerala
P.V.KUNHIKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.V.KUNHIKRISHNAN
Parties & counsel
