Allowed

Muhammed Sija v. State of Kerala

Kerala HC8 Dec 2023Bail Appl./8942/2023

Case brief

AI extract

What is this about?

This is a regular bail application in an NDPS prosecution. The High Court observed that while the quantity was commercial, the Prosecution case relied heavily on a brother's testimony linking the petitioner to fund transference. Granted bail to the petitioner treating his situation similarly to a coordinate bench that acquitted others, overriding the strict interpretation of Section 37.

What did the court decide?

Petitioner enlarged on bail with Rs.50,000 bond and two sureties for ₹50,000 each, passport surrender, and prohibition from leaving India or contacting witnesses.

Muhammed Sija 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 A. BADHARUDEEN

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FRIDAY, THE 8^TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945

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BAIL APPL. NO. 8942 OF 2023

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SC 948/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, THIRUVANANTHAPURAM

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CRIME NO.ECB 01/2023 OF EXCISE CRIME BRANCH SOUTHERN RANGE

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PETITIONER/5TH ACCUSED:

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MUHAMMED SIJA AGED 29 YEARS S/O.KHADER, SALVA MANZIL, PARASSINI ROAD, MULLAKODI P.O., NAMBRAM DESOM, NANIYOOR AMSHAM, KAYARALAM VILLAGE, THALIPARAMBA TALUK, KANNUR, PIN – 670602.

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BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN APARNA JOY

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031.

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SENIOR PUBLIC PROSECUTOR SRI K DENNY DEVASSY

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20.10.2023 AND THE COURT ON 08.12.2023 DELIVERED THE FOLLOWING:

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B.A.No.8942/2023 2

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A. BADHARUDEEN, J.

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================================

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B.A.No. 894 2 of 2023

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================================ Dated this the 8 th day of December, 2023

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O R D E R

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This is the third application for regular bail filed by the 5 th

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accused in Crime No.ECB 01/2023 of Excise Crime Branch

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Southern Range.

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2 . Heard the learned counsel for the petitioner and the

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learned Public Prosecutor in detail. Perused the final report placed

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b y the learned counsel for the petitioner and the report of the

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Investigating Officer along with the final report and documents put in by the learned Public Prosecutor.

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3 . The prosecution case is that at about 8.25 a.m on 10.11.2022, when the Excise Inspector and party engaged in

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B.A.No.8942/2023 3

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vehicle checking at Amaravila Check Post, 75 grams of MDMA (later found as methamphetamine, as per chemical analysis report) was seized from the 1 st accused while he was transporting the same in a bus bearing Reg.No.KA-01-AM-7666. Accordingly, alleging commission of offences punishable under Sections 22(c), 29 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1987 (hereinafter referred to as `NDPS Act' for short), crime was registered. It has been revealed during investigation that the petitioner/5 th accused is the person, who arranged MDMA from a Nigerian citizen in Bangalore and was handed over to the 3 rd accused and in turn the same was possessed by the 1 st accused. Accordingly, the petitioner was arrested on 26.03.2023 and has been in custody thereafter.

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4. While pursuing regular bail to the petitioner, the learned counsel for the petitioner would submit that the petitioner is innocent and there are no materials apart from the confession

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B.A.No.8942/2023 4

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statement of the 1 st accused, to connect the petitioner in this crime. According to the learned counsel for the petitioner, since confession statement recorded under Section 67 is held to be inadmissible during trial, the petitioner is liable to be released on bail diluting the rider under Section 37 of the NDPS Act, even though the quantity of contraband is commercial in nature. It is pointed out that after dismissal of the earlier bail application (B.A.No.3179/2023) filed by the petitioner as per Annexure-A3 order, final report was filed and in the final report also, there is nothing to connect the complicity of the petitioner. In view of the matter, the rider under Section 37 of the NDPS Act shall be adjudged in favour of the petitioner and he is liable to be released on bail.

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5 . The learned counsel for the petitioner would submit further that a co-ordinate Bench of this Court granted bail to accused Nos.2, 3 and 4 as per Annexure-2 order, mainly on the finding that except the

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B.A.No.8942/2023 5

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confession statements of the accused, calls between the accused and transfer of money in the account of accused Nos.1 and 2, there are no clinching materials available to prove the complicity of accused Nos.2 to 4 in this crime. According to the learned counsel for the petitioner, since the co-ordinate Bench of this Court granted bail to accused Nos.2 to 4 as per Annexure-2 order, similar treatment is liable to be given to the 5 th accused/the petitioner herein, also.

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6 . Whereas it is submitted by the learned Public Prosecutor that the petitioner was nabbed not only based on the confession statement of the 1 st accused but based on the statement given by his own brother stating that he had transferred Rs.75,000/- in the account of the 1 st accused as directed by the petitioner and the same money was used to purchase the MDMA. In fact, the prosecution has filed final report not only based on the confession statement, but also on the statement of the brother of the petitioner that he had transferred money to the account of the 1 st accused as instructed by

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B.A.No.8942/2023 6

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his brother, who is the petitioner herein ( 5th accused ), and in the charge there is specific allegation that all accused in this crime hatched conspiracy to deal with the contraband and dealt with the contraband. Therefore, all accused are equally liable. In such circumstances, the complicity of the petitioner is supported by ample materials and, therefore, the petitioner cannot be released on bail without diluting rider under Section 37 of the NDPS Act.

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7 . The learned Public Prosecutor would submit that the complicity of the petitioner herein is not similar to that of accused Nos.2 to 4 since in this case the brother of the petitioner/5 th accused had given categorical statement that he had transferred Rs.75,000/in the account of the 1 st accused, as directed by the petitioner for the purchase of MDMA. But no such material was found by the other Bench.

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8. On perusal of Annexure-2 order, which was passed subsequent to passing of Annexure-1 order, the learned Judge granted bail to accused Nos.2 to 4, holding that only confession

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B.A.No.8942/2023 7

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statement and some calls in between the accused are available for alleging commission of the offences against accused Nos.2 to 4. It was also observed by the learned Judge that Rs.96,000/- paid by the 2 nd accused to the 1 st accused was on account of their friendship. In this case, the complicity of the petitioner is also by transferring Rs.75,000/- in the account of the 1 st accused for the purchase of MDMA and the brother of the accused given statement to that effect.

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9 . Since accused Nos.2 to 4 were granted bail by another

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Bench of this Court, I am inclined to grant bail to this petitioner also

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Therefore, this petition stands allowed. The petitioner is enlarged on bail on the following conditions:

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(i) The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the

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B.A.No.8942/2023 8

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Special court concerned.

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(ii) The petitioner shall not intimidate the witnesses or

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tamper with evidence. He shall co-operate with the trial and shall be available for trial.

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(iii) The petitioner shall not leave India without the permission of the Special court.

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(iv) The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer.

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(v) The petitioner shall surrender his passport before the Special Court on the date of execution of the bail bond or within ten days therefrom, with special permission of the Special Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time.

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(vi) The petitioner shall not involve in any other offence

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B.A.No.8942/2023 9

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during the currency of bail and any such event, if reported or came

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to the notice of this Court, the same shall be a reason to cancel the

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bail hereby granted.

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Sd/-

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(A. BADHARUDEEN, JUDGE)

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rtr/

Muhammed Sija v. State of Kerala

Case brief

What is this about?

What did the court decide?

Muhammed Sija v. State of Kerala

Case brief

What is this about?

What did the court decide?

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