Dismissed

Sakkir Hussain, v. State of Kerala

Kerala HC11 Jul 2023Bail Appl./2748/2022

Case brief

AI extract

What is this about?

The High Court of Kerala at Ernakulam disposed of a bail application under Section 439 CrPC filed under the NDPS Act. Finding materials beyond co-accused confessions indicating complicity, the court ruled the petitioner did not satisfy Section 37 BNSS conditions. Bail was denied, and a direction was issued to complete the trial within eight months.

What did the court decide?

Bail application dismissed; direction to Sessions Judge to complete trial within eight months.

Sakkir Hussain, Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2023)

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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 ZIYAD RAHMAN A.A.

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TUESDAY, THE 11^TH DAY OF JULY 2023 / 20TH ASHADHA, 1945

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BAIL APPL. NO. 2748 OF 2022

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CRIME NO.22/2020 OF Parappanangadi Excise Range Office, Malappuram

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PETITIONER/ACCUSED NO 3:

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SAKKIR HUSSAIN, AGED 35 YEARS S/O. ABDUL HAMEED, PUTHANPURAYIL HOUSE, VADANAPPALLI, CHAVAKKAD THRISSUR, PIN - 680506

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BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA

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RESPONDENT/STATE:

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

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OTHER PRESENT:

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ADV.SEETHA.S, SR.GP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

B.A No. 2748 of 2022

O R D E R

This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail.

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2 . The petitioner is the 3 rd accused in Crime No. 22/2020 of Excise Range Office, Parappanangadi, Malappuram, which was registered for the offences punishable under Section 22(b)(ii)B, 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act.

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3 . The prosecution case is that, on 22.11.2020 at 5.55 p.m, the 1 st and 2 nd accused were found in possession of 88.120 grams of MDMA, 1.150 kilograms of Ganja, 0.930 grams of LSD stamp and 325.580 grams of Hashish in a rented house. The accused Nos. 1 and 2 were arrested immediately thereafter. During the course of investigation it was revealed that, the contraband articles were supplied by the petitioner herein. Accordingly, the petitioner was arrested on 14.07.2021. Since then he has been under judicial detention. This application for regular bail is submitted in such circumstances.

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B.A No. 2748 of 2022

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4 . Heard, Sri. K.K.Dheerendrakrishnan, the learned

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counsel for the petitioner and Smt. Seetha.S, the learned Public Prosecutor appearing for the State.

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5 . The learned counsel for the petitioner vehemently argued that there are absolutely no materials to connect the petitioner with the offences. It is pointed out that, even though the crime was registered on the assumption that the contraband article was MDMA, later it was found that the same is Methamphetamine. The accused Nos. 1 and 2, who are found in possession of the contraband articles are already released on bail. It is pointed out that, the petitioner was implicated as the 3 rd accused in this case, merely because of the confession statement given by the other accused persons. It is also pointed out that, even as per the confession statement, the contraband articles were procured from Delhi, whereas the prosecution case is that the petitioner had sent the contraband article by way of parcel through DTDC courier from Goa. Now, the petitioner has been in custody since 14.07.2021, and over two years have elapsed since the date of his arrest. The learned counsel places reliance upon the decision rendered by the Honourable Supreme Court in

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B.A No. 2748 of 2022

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Mohd.Muslim @ Hussain v. State (NCT of Delhi) I.L.R 2023

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(2) Kerala 457 and a single Bench decision of this Court in Fasil

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v. State of Kerala 2023(3) KHC 212 to substantiate his

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contention.

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6 . The learned Public Prosecutor opposes the said application. It is contended by the learned Public Prosecutor that, there are specific materials available on record. According to her, the contraband article was sent to the accused No.1, by way of courier through a courier agency named DTDC. The petitioner was identified by the concerned employee of the courier agency. The call data records of the petitioner and the 1 st accused would reveal that there were regular contacts between the parties and the number of calls during the relevant period comes around 356. Besides the same, there were regular Monetary transactions between the parties and the total amount which involved in the said transaction was found to be Rs.5,49,000/-. Thus, it is pointed out that the petitioner was implicated as one of the accused on the basis of specific materials and it is not confined to the confession statement of the accused alone.

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B.A No. 2748 of 2022

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7 . I have carefully gone through the records. As rightly pointed out by the learned Public Prosecutor, it is evident that even though the petitioner was included in the list of suspects on the basis of the confession statement, during the course of investigation, the investigation team could collect certain materials which would indicate the complicity of the petitioner. The facts such as, the regular monetary transaction between the parties, the call data records etc are some of the crucial aspects. In addition to the same, it is also reported by the learned Public Prosecutor that the petitioner was also involved in another case of similar nature, in which the quantity of contraband articles comes under commercial quantity. During the investigation, when some of the parcels of toys allegedly sent by the petitioner was examined, it found that 30 grams of MDMA was concealed therein. This indicates the modus operandi of the petitioner.

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8 . One of the crucial contention raised by the learned counsel for the petitioner is that,he has acquaintance with the 1 st accused, as a seller of toys and the petitioner is a person who is a wholesale dealer of toys. According to him, the entire transactions which were referred to by the prosecution are in relation to the

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B.A No. 2748 of 2022

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transaction of the toys. However, the fact that, even in the toys which were allegedly sent by the petitioner to the 1 st accused, the contraband article was found concealed, is some thing which supports the prosecution case.

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9 . When all the aforesaid aspects are taken into consideration, I am of the view that, there are materials indicating a prima faice case against the petitioner. It is true that, the other accused were released on bail, but it is discernible from the records that they were released on the basis of statutory bail. I am of the view that, merely because of the reason that the other accused were released on statutory bail, the petitioner cannot be granted bail. It is particularly because, as per the prosecution case, it was the petitioner who supplied the contraband articles. Besides the same, the petitioner is involved in other cases as well. 10. As regards the decision relied on by the learned counsel for the petitioner, it is to be noted that, in Mohd. Muslim' s Case, the Honourable Supreme Court observed about the manner in which the assessment of the satisfaction of the twin conditions contemplated under Section 37 of NDPS is to be applied. However, even going by the observation made therein, the Court

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B.A No. 2748 of 2022

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has to express satisfaction as to the conditions stipulated under Section 37 of the Act before taking a decision as to whether the accused is to be released on bail and the rigour cannot be completely ignored. Therefore, the question of satisfaction of the said conditions is to be decided on a case to case basis. With regard to the decision rendered by this Court in Fasil 's case, it was observed by this Court that, in certain circumstances, the rigour of Section 37 of the NDPS Act would get diluted. Of course, I am in full agreement with the aforesaid observation. However, the observations of this Court in Fasil 's case cannot be interpreted to mean that in all the cases where the circumstances referred to in the said decision are in existence, automatically, the bail has to be granted to the accused, by completely ignoring the stipulations contained in Section 37 of the NDPS Act. In my view, the said decision is only on the proposition that the rigour of Section 37 would get diluted in certain circumstances, which would mean that the intensity of the rigour becomes lesser. 11. Even when the parameters contained in the observations made by the Honourable Supreme Court in Mohd. Muslim 's case and also the observations made by this Court in

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B.A No. 2748 of 2022

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Fasil 's case, are applied to the facts and circumstances of this case, I am of the view that, the petitioner does not deserve bail in this case. In addition to the confession statement, there are other materials indicating the complicity of the petitioner. Therefore, merely because of the reason that, the final report has been submitted and the petitioner has been in custody for the past two years, the petitioner cannot be granted bail, as I am not convinced that the twin conditions contemplated under Section 37 of the NDPS Act are satisfied.

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12. In this regard, it is also to be noted that, earlier when the matter came up for consideration, a report was called for from the Special Court for SC/ST Prevention of Atrocities Act and NDPS Act cases, Manjeri, where the matter is now pending as S.C No. 1198/2021, as to the status of the case and the time required for completing the trial of the said case. In response to the same, a report dated 09.05.2023 has been placed on record, wherein, it is mentioned that, the trial of the case can be completed within a period of eight months.

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After considering all the relevant aspects, I am of the view that, this is not a fit case in which the bail can be granted to the

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B.A No. 2748 of 2022

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petitioner. In such circumstances, taking note of the contents of the report of the learned Sessions Judge, even while dismissing

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this application, it is directed that every endeavor shall be taken

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by the learned Sessions Judge to complete the trial, within the time mentioned in the aforesaid report.

Sd/-

ZIYAD RAHMAN A.A

JUDGE

rpk

B.A No. 2748 of 2022

APPENDIX OF BAIL APPL. 2748/2022

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PETITIONER ANNEXURES

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Annexure1	A TRUE COPY OF THE ORDER DATED 25.05.2021 IN CRL MP(TEMP) NO. 53/2021 PASSED BY THE SPECIAL COURT FOR SC/ST(POA) ACT & NDPS ACT CASES MANJERI
Annexure2	A TRUE COPY OF THE ORDER DATED 25.05.2021 IN CRL MP (TEMP) NO. 52/2021 PASSED BY THE SPECIAL COURT FOR SC/ST(POA) ACT & NDPS ACT CASES MANJERI
Annexure3	A TRUE COPY OF THE DISCHARGE SUMMARY FROM DAYA GENERAL HOSPITAL LTD AND SPECIALTY SURGICAL CENTRE, THRISSUR
Annexure4	A TRUE COPY OF DISCHARGE SUMMARY FROM NEW MEDICAL COLLEGE HOSPITAL, THRISSUR
Annexure5	CERTIFIED COPY OF THE ORDER DATED 04.02.2022 IN CRL MP NO. 47/2022 PASSED BY THE SPECIAL COURT FOR SC/ST(POA) ACT & NDPS ACT CASES MANJERI

Sakkir Hussain, v. State of Kerala

Case brief

What is this about?

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Sakkir Hussain, v. State of Kerala

Case brief

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