Dismissed

Anwar B v. State of Kerala

Kerala HC20 Feb 2023Bail Appl./206/2023

Case brief

AI extract

What is this about?

Petitioner, a nursing student accused of trafficking MDMA to a client in Karunagappally, sought regular bail. The Court dismissed the application, holding that the commercial quantity involved triggered the rigor of Section 37 of the NDPS Act, precluding bail at that stage despite inconsistencies in the seizure certificate.

What did the court decide?

Bail application dismissed. Petitioner is not inclined to be granted bail at this stage due to the commercial quantity of the alleged contraband.

Anwar B Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

¶4

MONDAY, THE 20^TH DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944

¶5

BAIL APPL. NO. 206 OF 2023

¶6

AGAINST THE ORDER/JUDGMENTSC 2157/2022 OF DISTRICT COURT &

¶7

SESSIONS COURT,KOLLAM

¶8

Bail Appl. 8782/2022 OF HIGH COURT OF KERALA

¶9

KARUNAGAPPALLY POLICESTATION CRIME NO.750/2022

¶10

PETITIONER/ACCUSED NO.3:

¶11

ANWAR B,AGED 28 YEARS THAZNI MANZIL, KUMBARAM KUNNIL OTTAPPALAM EAST OTTAPPALAM VILLAGE PALAKKAD DISTRICT - 679101

¶12

BY ADVS. B.N.HASKAR B.K.GOPALAKRISHNAN

¶13

RESPONDENT/COMPLAINANT:

¶14

STATE OF KERALA

¶15

REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, ERNAKULAM - 682031

¶16

OTHER PRESENT:

¶17

PP - RIYAL DEVASSY

¶18

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BA No.206 of 2023

VIJU ABRAHAM, J.

B.A. No.206 of 2023

¶23

Dated this the 20^th day of February, 2023

¶24

ORDER

¶25

This is an application for regular bail.

¶26

Petitioner is the 3^rd accused in Crime No.750 of 2022 of Karunagappally Police Station registered alleging commission of offences punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic substances Act, 1985.

¶27

Prosecution case, in brief, is that on 04.06.2022, acting on a tip-off, when the Sub Inspector of Police, Karungappally Police Station reached at the Railway Parking Ground of Karunagappally Railway Station, the 1^st accused was found in possession of 52.61 grams of MDMA which he had kept in his inner-wear. 1^st accused was caught redhanded and the contraband was seized and he was arrested from the spot. According to the prosecution, on interrogation of 1^st accused, it was revealed that he purchased the MDMA from 2^nd accused, Althaf, who is a nursing student at Bangalore and the order for the MDMA was booked through the whatsapp message of 2^nd accused and he was arrested on 17.06.2022 from Bangalore. Upon interrogation of A2 Althaf, it was revealed that A3/petitioner Anwar supplied the MDMA to him.

¶28

BA No.206 of 2023

¶29

¶30

Petitioner was arrested on 17.06.2022. Upon interrogation of the petitioner regarding the source of MDMA, it was revealed that he purchased the MDMA from A4, Baba John, who is an African citizen and now residing at Bangalore. A4 was arrested on 25.06.2022. At the time of arresting accused No 4, he was found in possession of 52.78 grams of MDMA. Thus the accused are liable for the commission of alleged offences.

¶31

Petitioner submits that he has been falsely implicated in the abovesaid crime and that he is a nursing student at Bangalore. 2^nd accused is a friend of the petitioner and is residing in the same lodge and they are studying together. After the arrest of the 2^nd accused the petitioner has been falsely implicated in the crime. He was arrested on 17.06.2022. Though he moved an application for bail before the Sessions Court, the same was rejected as per Annexure-A1. Thereafter the petitioner has approached this Court twice, but the bail applications were dismissed as per Annexures-A2 and A3 orders. Thereafter the petitioner again approached the Sessions Court, Kollam seeking bail, the same was also rejected as per Annexure-A4 order dated 21.12.2022. Petitioner has no other criminal antecedents and he was implicated in the abovesaid crime on the basis of the confession statement of the other accused. Petitioner has undergoing nursing study and Annexure-A5 is the bonafide certificate issued by the Principal of

¶32

BA No.206 of 2023

¶33

¶34

the said Nursing College.

¶35

Various contentions were raised by the petitioner. One was regarding the discrepancy in the certificate of chemical analysis wherein it is stated that one sealed packet containing the following quantity of partly crushed dry greenish brown leafy material with flowering and fruiting tops alleged to be ganja involved in NDPS Crime No.750 of 2022 is received. But in the column below the same it is specifically stated that item received is MDMA. Petitioner submits that this discrepancy is fatal and he is entitled for an acquittal based on that and therefore that aspect should be considered at the time of consideration of the bail application. The learned Public Prosecutor would submit that the Chief Chemical Examiner to Government, Chemical Examiner's Laboratory, Thiruvananthapuram-35 has already addressed the District and Sessions Court, Kollam informing that that a mistake was found in the certificate issued from his office and he has requested the court to return the issued certificate for making appropriate correction. In view of the same the contention of the petitioner in this regard cannot be accepted at the time of consideration of the bail application. Of course these contentions could be raised by the petitioner during trial.

¶36

Yet another contention raised by the petitioner is that even though he was arrested on 17.06.2022 the whatsapp chats which were alleged to have been made even as on 24.06.2022 were taken into

¶37

BA No.206 of 2023

¶38

¶39

consideration to show the involvement of the petitioner in the alleged crime. Whatever whatsapp chats that have been made in police custody cannot be a matter of evidence to rope in the petitioner as an accused. To which the learned Public Prosecutor would submit that the 1^st accused was arrested on 04.06.2022 and based on his statement, he has purchased the synthetic narcotic drug from the petitioner with the help of the 2^nd accused. The investigation revealed that the 1^st accused purchased MDMA from Bangalore by giving Rs.60,000/- to the petitioner with the help of the 2^nd accused. The whatsapp chats and details of the 1^st accused were verified and it is revealed that he was continuously in contact with the 2^nd accused and the petitioner. As part of the investigation the police party went to Bangalore for tracing the source of the narcotic drug involved in the present case and thereafter the petitioner and 2^nd accused were arrested on 17.06.2022 from Bangalore. The investigation thereafter revealed that the petitioner's source of MDMA is from a person named Christian Udo @ Baba John, the 4^th accused a Ghana national living in Bangalore. The investigation further revealed that the petitioner purchased large quantities of narcotic drug from the African national. The only contact of petitioner with the 4^th accused was through whatsapp chat and calls. Hence as part of the investigation the petitioner was provided with his mobile phone which was kept in safe custody and made him chat with the said 4^th accused

¶40

BA No.206 of 2023

¶41

¶42

and all the chat details of the petitioner were kept under the strict surveillance of the police. On 21.06.2022 the petitioner had a whatsapp chat in the presence of the investigating officer and fixed a deal for buying 70 grams of MDMA at Karunagappally Police Station with the 4^th accused. Thereafter the police party went to Bangalore along with the petitioner on 24.06.2022 for tracing out the source of narcotic drug and on the way to Bangalore the petitioner was again provided with mobile phone and it was ensured that the 4^th accused would come to exchange the narcotic drug and on 25.06.2022 the petitioner was in contact with the 4^th accused over whatsapp. The 4^th accused on several times had changed the location for exchange of drugs and finally fixed it at Sarjapur, Bangalore and he was arrested from Sarjapur along with 52.78 grams of MDMA. The investigation further revealed that the petitioner is the main agent and close associate of the 4^th accused dealing with narcotic drug. The investigation also revealed that the petitioner is an active member of the drug racket operating in Bangalore and he is the middle man acting between the Kerala buyers and the African national. After conducting a proper investigation, final report has been filed arraying the petitioner as the 3^rd accused. Therefore, the contention of the learned Public Prosecutor that there are sufficient materials to connect the petitioner with the alleged crime and the subsequent chat with the 4^th accused at the instance of the police was

¶43

BA No.206 of 2023

¶44

¶45

only to arrest the 4^th accused who is the main supplier of the alleged contraband.

¶46

Considering the seriousness of the allegations and the alleged active role of the petitioner in the commission of the alleged offence and also taking into consideration the fact that the alleged contraband is of a commercial quantity, the rigor of Section 37 of the NDPS Act will definitely come into play and therefore I am not inclined to grant bail to the petitioner at this stage . Bail application is accordingly dismissed.

¶47

Sd/-

¶48

VIJU ABRAHAM JUDGE

¶49

cks

Anwar B v. State of Kerala

Case brief

What is this about?

What did the court decide?

Anwar B v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Aparna Vs State of Kerala

Gopalakrishnan v.P., Vs the District Collector, Thrissur

Neethu Varghese Vs the State of Kerala

Nishad Vs State of Kerala

Sivagovind Vs State of Kerala

Avinaash Vs State of Kerala