The High Court in Kerala dismissed a bail application under the NDPS Act. The petitioner alleged fake abduction and false implication in a commercial offence involving LSD and MDMA. The Court found the quantity commercial and the complaint of abduction unsubstantiated, refusing bail.
Bail application dismissed; petition not granted.
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 VIJU ABRAHAM
WEDNESDAY, THE 17TH DAY OF AUGUST 2022 / 26TH SRAVANA, 1944
BAIL APPL. NO. 4111 OF 2022
CRIME NO.3/2022 OF EXCISE RANGE OFFICE, FEROKE
PETITIONER/ACCUSED:
ROSHAN JACOB OOMMEN SON OF. DR BABU OOMMEN THOMAS, AGED. 35 YEARS, MEENKULATH CHALIL BUNGALOW AMBAYATHODE, RAROTH VILLAGE, THAMARASSERY, KOZHIKODE DISTRICT, PIN-673573. BY ADVS. V.S.MANSOOR S.MOHAMMED AL RAFI AKHIL BINOY
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 BY PUBLIC PROSECUTOR SRI.M.C.ASHI
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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VIJU ABRAHAM, J.
B.A.No.4111 of 2022
Dated this the 17th day of August, 2022
ORDER
This is an application for regular bail.
Excise Range Office, Feroke, Kozhikode registered alleging commission of offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (in short, “NDPS Act”).
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denies the same and he has been falsely implicated as accused at the instance of certain persons who are nursing grudge against him. On the date of alleged occurrence of Crime, petitioner never came to Manakavu in Kozhikode. Since the last 8 months the petitioner has been residing in the ancestral estate bungalow situated in Thamaraserry. On the date of alleged occurrence of crime, 14.02.2022 at about 5:00 p.m, he came to Emperor Business Class Hotel Bar, in Ambayathode at Thamarassery. After some time one person came to the hotel and enquired for the petitioner. This stranger approached the petitioner and enquired about the sale of Teak trees in the estate. Petitioner replied that, he is not interested in selling the teak trees as their property was embroiled in litigation. Thereupon that stranger casually invited the petitioner to have discussion outside the bar hotel and took him to his Benz car in the parking area of the Hotel all the while discussing regarding the possibility of sale of Teak trees in the estate. Suddenly five persons in plain clothes surrounded the petitioner and forcibly handcuffed and took away him in a Wagon-R car. The CCTV camera of the Emperor Business Class Hotel Ambayathode, clearly video graphed the events where in the petitioner was abducted by the Excise officials. Annexure 4 series of photographs were produced to show that the petitioner was in fact arrested from the said premises of the Emperor Business Class Hotel, Ambayathode. The
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petitioner claims that these photographs were taken from the CCTV footage. It is further contended that the distance between Ambayathode in Thamarassery and Mankavu in Kozhikode comes to 35 kms. The alleged occurrence of the crime as per Annexure 2 is at 7.00 p.m. whereas the CCTV footage shows the timing as 5:42 p.m. In fact, the petitioner was abducted by the excise officers along with goondas and fabricated a false case and the entire allegations are fictitious and without any truth. Petitioner has also produced Annexures A6 and A7 notarized affidavits to prove his contention that he was abducted on 14.02.2022 from Hotel Emperor, Ambayathode. A complaint was preferred by the brother of the petitioner regarding the said incident and a preliminary enquiry report bearing No.1 of 2022 was registered by the Thamarassery police. It is the case of the petitioner that his brother somehow managed to get CCTV footage but it is learned that the CCTV cameras were taken away by one Sai Shanker and Shobal Abraham and the footage has been deleted due to the threat of the excise authorities and in this regard, a writ petition was filed before this court as W.P.(C) No.16547 of 2022 seeking for an enquiry and departmental and criminal action against the delinquent officers. A representation was also preferred before the Government as Annexure A9. Petitioner submits that he is a victim of the rivalry within the M/s Malabar Produce and the Rubber Company Ltd., which was founded by the petitioner’s
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great grandfather. There were a series of disputes including civil suits pending in respect of the said estate. Annexures A10 and A11 are produced to substantiate those contentions. Petitioner was against conducting of illegal quarry in the land of the company by Shobal Abraham and due to the same, the said Shobal Abraham with the help of his associate, Sai Shanker decided to entrap the petitioner in an NDPS case. It is also submitted that the provisions of search and seizure as provided in the NDPS Act have not been followed in the present case.
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Government to conduct an enquiry and initiate departmental and criminal action against the delinquent officers and the said writ petition was disposed of as per judgment dated 30.06.2022 wherein it was held that if the petitioner has any grievance regarding the conduct of the preliminary enquiry and the closing of complaint, it is for the petitioner to move the concerned Magistrate Court with appropriate application and complaint. The learned Public Prosecutor further contended that the alleged search and seizure was conducted strictly in accordance with the procedures contemplated in Section 50 of the NDPS Act. It is further submitted that a perusal of Annexure A3 seizure mahazar will clearly show that the right to be searched in the presence of a Magistrate or a gazetted officer was duly informed to the petitioner orally and in writing and he gave written intimation that he need only be searched by the investigating officer himself and when the investigating officer attempted to call his Superior Officer, Circle Inspector of Excise, Kozhikode, the petitioner became violent and he attempted to take something out of his pants pocket and thereupon the said act was stopped by the investigating officer. His body was searched and the contraband was seized from his pants pocket. It is also submitted that the petitioner is involved in several other criminal cases, the details of which are as follows:
(1) Crime No.549 of 2018 registered under Sections 324
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and 427 IPC and the case is pending trial as CC No.659 of 2020 on the file of the Judicial First Class Magistrate Court-I, Thamarassery.
(2) Crime No.550 of 2020 registered under Sections 448, 427 and 506 IPC and the case is pending trial as CC No.1053 of 2020 on the file of the Judicial First Class Magistrate CourtI,Thamarassery.
(3) Crime No.1185 of 2021 registered under Sections 289 and 324 IPC and the case is pending trial as CC No.53 of 2022 on the file of the Judicial First Class Magistrate Court-I, Thamarassery.
(4) Crime No.16 of 2022 registered under Sections 448, 341 and 323 IPC and after completing investigation, the case charge sheeted on 30.03.2022.
(5) Crime No.100 of 2022 registered under Sections 447, 506 and 308 IPC and after completing the investigation, the case charge sheeted on 21.04.2022.
(6) Crime No.101 of 2022 registered under Sections 427, 341, 294(b), 506 and 308 IPC and after completing the investigation, the case charge sheeted on 25.04.2022.
As per the details available in Crime Drive Application
he is also involved in the following cases:
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(1) Crime No.1174 of 2021 registered under Sections 147, 427, 353, 506(i) read with Section 34 IPC and Sections 4 and 5
of PDPP Act on 07.10.2021 of Kannur Town Police Station.
(2) Crime No.25 of 2014 under Sections 341, 323, 324, 294(b), 506(1) read with Section 34 IPC and Section 3(1)(x) of SC/ST(POA) Act.
It is also submitted that the proceedings as per Section 107 of the Code of Criminal Procedure and opening of rowdy history sheet have been initiated against the petitioner.
Since the quantity of the contraband involved in this case is commercial, the rigor of Section 37 of the NDPS Act will come into play. The complaint that the petitioner was abducted was not substantiated in the preliminary enquiry conducted as PE No.1 of 2022. Even though the petitioner made a complaint before the Judicial First Class Magistrate Court-I, Thamarrasery that he was kidnapped by the excise officials and was falsely implicated in the present crime and the same was got enquired into, the court below as per Annexure A20 order dated 25.06.2022 dismissed the same for want of necessary sanction. It is not on record that the petitioner has challenged the said order in appropriate proceedings. The petitioner has not substantiated that the twin conditions in Section 37 of the NDPS Act are satisfied so as to enlarge the petitioner on bail. Further that the various contentions raised
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by the petitioner could be established only at the time of trial and these are not matters which could be decided while considering a bail application.
Considering the facts and circumstances of the case and the nature of the allegation and that the investigation is in progress, I am not inclined to grant bail to the petitioner at this stage.The petition is accordingly dismissed.
It is 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 trial.
Sd/-
VIJU ABRAHAM
JUDGE
cks
3 issues framed by the court
Whether bail must be granted to the petitioner alleging fake abduction and false implication in a commercial narcotics case.
Whether the twin conditions of Section 37 of the NDPS Act are satisfied to enlarge the petitioner on bail.
Whether the petitioner can rely on unverified allegations of fabrication to secure bail at this stage.
3 provisions across 1 enactments
ROSHAN JACOB OOMMEN SON OF. DR BABU OOMMEN THOMAS
STATE OF KERALA
VIJU ABRAHAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
