IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Bail Appl..No. 373 of 2010() ---------------------------- CRMP.830/2009 of SPL. COURT (NDPS ACT CASES), VADAKARA CRIME NO.652/2009 OF NADAKKAVU POLICE STATION, KOZHIKODE .................... PETITIONER/ACCUSED -------------------------------------- SURESH KUMAR K.C., S/O. CHANDRAN, PUTHENPURACKAL VEEDU, CHITRAPURAM P.O., IDUKKI. BY ADV. SRI.S.RAJEEV RESPONDENT(S): STATE -------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.652 OF 2009 OF NADAKKAVU POLICE STATION). BY PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A.NO. 373 OF 2010 ------------------------------------------------------ Dated this the 3rd day of March, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.652/2009 of Nadakkavu Police Station, Kozhikode. 2. The offence alleged against the petitioner is under Section 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act. 3. The prosecution case is that on 30/11/2009, the petitioner was found in possession of 26 Kgs of ganja. The petitioner was arrested on the same date and he was remanded to judicial custody. 4. It is stated that on 30/11/2009, one Viju Thomas @ Baby @ Achayan was taken into custody in Crime No.651/2009 of Nadakkavu Police Station for the offence under Section 20(b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act for having been found in possession of intermediate quantity of ganja. It is B.A.NO. 373 OF 2010 :: 2 :: stated that Viju Thomas made a confession statement, in which he stated that he along with the petitioner (Suresh Kumar K.C.) came from Rajakkad in a Santro Car bearing registration No.KL 01 U 8594 to Calicut. 40 Kgs of ganja was being taken by them in the car. After reaching Kozhikode, Viju Thomas @ Baby @ Achayan took 14 Kgs of ganja from out of the total quantity of 40 Kgs. Viju Thomas @ Baby @ Achayan was arrested while he was found in possession of part of said quantity of 14 Kgs of ganja. Viju Thomas stated that Suresh Kumar K.C. would come near East Hill Central School. The police party made surveillance near the East hill Central School. While making surveillance, they found the Santro Car with the registration number mentioned by Viju Thomas. The car was intercepted. They found the petitioner, who satisfied the identification features mentioned by Viju Thomas. The police found 26 Kgs of ganja in the car. The petitioner was arrested. 5. The petitioner has stated that the Circle Inspector of Police, Nadakkavu Police Station came to Kothamangalam and lodged in Kaveri Tourist Home. The petitioner was called to the said Tourist Home and he was taken into custody by the Circle Inspector of Police. The petitioner was later produced before the Special B.A.NO. 373 OF 2010 :: 3 :: Court, under the pretext that he was arrested from Kozhikode. It is submitted that there is no material to connect the petitioner with the offence. 6. The learned counsel for the petitioner had shown for perusal a certified copy of the remand report dated 1/12/2009 in Crime No.651/2009 of Nadakkavu Police Station, in which Viju Thomas is the accused. It is submitted by the learned counsel for the petitioner that if the case of the prosecution that Viju Thomas disclosed about the possession of ganja by the petitioner and his arrival to Calicut along with Viju Thomas, that fact would have been mentioned in the remand report in Crime No.651/2009. 7. The learned Public Prosecutor submitted that the remand report in Crime No.651/2009 was intended for satisfying the court that remand of the accused therein in custody was required. It is not necessary to state in that remand report the facts in another case and the facts leading to the arrest of the another accused in another case. The learned Public Prosecutor also submitted that it is not necessary to state the disclosure made in a confession statement, which is not admissible in evidence, in the remand report. B.A.NO. 373 OF 2010 :: 4 :: 8. The learned Public Prosecutor vehemently opposed the Bail Application. 9. Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act provides that no person accused of an offence involving commercial quantity of Narcotic Drug shall be released on bail, if the Public Prosecutor opposes the application, except where the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offences and that he is not likely to commit any offence while on bail. 10. The attempt of the learned counsel for the petitioner is to establish that there are reasonable grounds for believing that the accused has not committed the offence. The materials on record, prima facie, indicate that the petitioner was arrested at Kozhikode. There is no material to indicate that the petitioner was arrested from Kothamangalam. So, the first limb of the argument made by the learned counsel for the petitioner to substantiate the contention that there are reasonable grounds for believing that the petitioner is not guilty, is not established. B.A.NO. 373 OF 2010 :: 5 :: 11. The second limb of the argument is based on the remand report in Crime No.651/2009. The remand report is required for the purpose of satisfying the court that grounds exist for remanding the accused in custody. Necessary facts and materials should be placed before the court to arrive at a conclusion that the accused should be detained in custody for the purpose of the investigation or for any other purpose, which is required in the case. The necessary factual foundation must be brought out in the remand report to enable the court to arrive at the conclusion. The remand report need not contain narration of all the facts and circumstances of the case, details and evidence in the case. That is required only at the time of trial. Remand report is not a substitute for trial. The purpose of the remand report is only to invite the court’s attention that on the basis of the facts stated in the remand report, detention of the accused is necessary. Factual details available in the confession statement need not necessarily be incorporated in the remand report. If so, the information given by Viju Thomas to the investigating officer that he along with the petitioner, Suresh Kumar K.C., came in a Santro car from Rajakkad to Kozhikode need not be stated in the remand report in Crime No.651/2009. Therefore, I am B.A.NO. 373 OF 2010 :: 6 :: not inclined to accept the contention of the learned counsel for the petitioner. 12. I am not satisfied that there are reasonable grounds for believing that the petitioner has not committed the offence alleged against him. I am also not inclined to arrive at a conclusion that the petitioner will not commit similar offence while on bail. It is likely that if the petitioner is released on bail, he may indulge in similar prejudicial activities. 13. As both the limbs of Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act are not established in the case, I am of the view that the Bail Application is liable to be dismissed. For the aforesaid reasons, the Bail Application is dismissed. (K.T. SANKARAN) Judge scm/csl