BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Friday, the Thirtieth day of September Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) No.8505 of 2011 MURUGAN @ MANAL MURUGAN, ... PETITIONER / ACCUSED 3 Vs STATE REP BY:: THE INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, CHENNAI. ... RESPONDENT / COMPLAINANT For Petitioner : M/S. M.AJMAL KHAN Advocate For Respondent : MR. C. ARUL VADIVEL @ SEKAR, SPL. PUBLIC PROSECUTOR FOR NCB PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioner/A3 apprehends arrest at the hands of the respondent police for the offence under Sections 8(c) read with 21(c), 28 and 29 of N.D.P.S. Act, 1985 in N.C.B.F.No.48/1/02/2006-NCB/MDS on the file of the respondent police and seeks anticipatory bail. 2.The learned counsel appearing for the petitioner would submit that the petitioner is arrayed as A3 in a case in N.C.B.F.No.48/1/02/2006-NCB/MDS on the file of the respondent police and charge sheet has been filed against one Thangathurai and 4 others alleging that on 07.01.2006, they received a specific information about the transportation of 4 kilograms of heroin and at 01.30 p.m., when the respondent police was in surveillance along with his team, one Thangathurai/A1, Mariya Siluvai/A2 were riding a motorcycle in a suspicious manner and when the police intercepting them, Thangathurai/A1 made an attempt to escape from the spot and the respondent police managed to apprehend them and at that time, the respondent police said to have recovered 4.170 kilograms of heroin from Mariya Siluvai/A2. He would further submit that it was alleged in the charge sheet that A1 and A2 has given their statements under Section 67 of N.D.P.S. Act, which would reveal that Thangathurai/A1 https://hcservices.ecourts.gov.in/hcservices/ came to know one Raja/A3 and Gulam Mohamed/A4 through a common friend and Mubarak/A5 had instructed A1 to assist him for the transportation of the heroin. He would further submit that on 30.12.2005, A3 and A4 came to A1's shop and asked him to meet on 02.01.2006 and on 02.01.2006, A1, A3 and A4 met in the house of Raja/A3 and on 04.01.2006, A3 gave him a heroin substance weighing 4 kilograms and informed him to hand over the same to Mubarak/A5 at Tiruchendur and when they were proceeding to transport the heroin, they said to have apprehended by the respondent police. He would further submit that the respondent police, after completing the investigation filed a charge sheet against five persons arraying one Raja as A3 and the same was taken on file in C.C.No.306 of 2008. He would further submit to the shock and surprise of the petitioner, the petitioner was served with an order passed under Section 68 F(i) N.D.P.S. Act, alleging that the petitioner the accused shown as A3 in the charge sheet, which was taken on file in C.C.No.306 of 2008 and warrant is pending against him and hence, he apprehend arrest by the respondent police. 3.The learned counsel appearing for the petitioner would submit that the case of the petitioner is that the petitioner has not committed any offence as alleged by the prosecution and a false case has been foisted against the petitioner. He would further submit that the petitioner's name did not find place in the intelligence report recorded under Section 41(2) and Section 42 of NDPS Act and the statements recorded under Section 67 of NDPS Act said to have given by A1 and A2 cannot be used against the petitioner and there is no document to show that this petitioner himself is called as Raja. He would further submit that the petitioner never absconded from the native place and the cases registered in crime No.s130 of 2008 and 73 of 2008 on the file of the Kangaikondan police station against the petitioner were referred as 'Mistake of Fact' and the same was reported before this Court in Crl.O.P.(MD) Nos.2646 of 2011 and 2642 of 2009 and in crime No.5 of 2009 on the file of the Kangaikondan police station and crime No.13 of 2008 on the file of the Seevalaperi police station were quashed by this Court in Crl.O.p.(MD) Nos.468 of 2009 and 2258 of 2010 and the petitioner has all along attended and https://hcservices.ecourts.gov.in/hcservices/ defended the case in S.C.No.50 of 2011 on the file of the Fast Track Court No.1, Tirunelveli and got quashed. To substantiate his argument, he relied upon various decisions of the High Court and Apex Court and prayed for enlarging the petitioner on anticipatory bail. 4.The respondent filed counter affidavit stating that on the basis of the specific information on 07.01.2006 that one Thangathurai is in possession of 4 kilogram heroin and he along with one Maria Siluvai will be transporting the said narcotic drug in a Yamaha motorcycle bearing Reg. No.TN 69 6838 to Tiruchendur for onward shipment to Srilanka by a launch arranged by one Mubarak and hence on 07.01.2006, the officers of NCB, SZU, Chennai seized 4.170 kilograms of heroinat opposite to Thermal Nagar Camp II Main Gate, Muthaiahpuram Road, Tuticorin and arrested persons viz., A.Thangathurai/A2 and S.Maria Siluvai/A2 and A1 Thangathurai @ Durai have given a statement under Section 67 of the NDPS Act, admitted that he was called by one Rajua/A3 on 04.01.2006 to a place called Vallanadu and the said Raja came in a green colour Qualis car and handed over the heroin about 4 kilograms along with Rs.3,000/- and asked him to carry out the work as instructed by Gulam Mohamed. 5.It was further stated that after completion of investigation, the complaint has been filed before the N.D.P.S Court, Madurai on 03.07.2006 in NCB F.No.48/1/02/2006 NCB-MDS against five persons viz., A.Thangadurai @ Durai/A1, S.Mari Siluvai/A2 and the absconding accused viz., Raja/A3, Gulam Mohamed/A4 and Mubarrak/A5 and the complaint has been taken cognizance in C.C.No.479 of 2006 by the trial Court. It was further stated that as three accused were absconding, the case was split up against the absconding accused in C.C.No.306 of 2008 and non bailable warrant has been issued against them and on 19.06.2009, non bailable warrant issued by N.D.P.S. Court, Madurai was executed against A4/Gulam Mohamed and he was remanded to judicial custody and now the non bailable warrant issued against a3/Raja is pending for execution. https://hcservices.ecourts.gov.in/hcservices/ 6.It was further stated that the police had sent a photograph of Murugan and after approaching the N.D.P.S Court, as per the directions, enquiry was conducted with the remand prisoner and A1/Thangathurai @ Ddurai identified and confirmed that the photograph of Murugan forwarded by the police was that of the same person Raja, whom he had referred to in his voluntary statement dated 07.01.2006. 7.It was further stated in the counter affidavit that the material evdice have already been submitted to the trial Court that Raja/A3 as mentioned in the complaint and Murugan @ Manal Murugan are one and the same person. It was further stated that as regard the freezing order, after confirming that Murugan @ Manal Murugan is the same person Raja/A3, who was arrayed as accused in N.C.B.F.No.48/1/2/2006/NCB-MDS in C.C.No.306 of 2008, necessary action for financial investigation as envisaged in NDPS Act 1985, as amended, was initiated and freezing order dated 28.04.2011 was issued under Section 68 F(1) NDPS Act and the freezing order was also confirmed by the competent authority vide his order dated 23.05.2011 after giving opportunity to the petitioner Murugan @ Manal Murugan @ Raja to present his case and to appeal before the Appellate Tribunal for forfeited property as permitted by law. 8.It was further stated that all the materials evidences establishing that Murugan @ Manal Murugan and Raja are one and the same person and NBW has also been issued and he is abscond and evading arrest and hence, he prayed for the dismissal of the application. 9.I have considered the submissions made on either side and perused the materials available on record. 10.As per the version of the learned counsel appearing for the petitioner, the petitioner is not Raja as mentioned by A1/Thangathurai in his statement recorded under Section 67 of the N.D.P.S. Act. Per contra, the learned Additional Public Prosecutor would submit that after verified from A1/Thangathurai by showing the photograph of Murugan @ Manal Murugan/the petitioner herein, they come to the https://hcservices.ecourts.gov.in/hcservices/ conclusion that he is the person Raja/A3 as mentioned by A1/Thanthurai and he has handed over 4.170 kilograms of heroin to A1 for transporting the same to Srilanka. 11.Perusal of the entire records received from the trial Court has prima facie proved that A1/Thangathurai had stated in his statement recorded under Section 67 of the N.D.P.S Act that on 02.01.2006, A1 has gone to the house of Raja/A3 and at that he introduced one Gulam Mohamed and Mubarak and A3 asked him to come to Vallanadu and accordingly, on 04.01.2006, A1 gone to Vallanadu and there, A3 handed over 4 kilograms of heroin and Rs.3,000/- to A1. At this juncture, it is appropriate to consider the passport filed by the petitioner, which would show that the petitioner gone to Srilanka on 29.12.2005 and returned back to India on 02.01.2006. Hence, it is clear that on 02.01.2006, the petitioner was in his house and on 04.01.2006, he gone to Vallanadu and handed over 4 kilograms of heroin and Rs.3,000/- to A1/Thangathurai. Only after the freezing order has been passed, the respondent police got the photograph of the petitioner and verified the same with A1/Thangathurai and came to the conclusion that this petitioner and Raja/A3 is one and the same. As per the freezing order, the petitioner is having the right to appeal against the said order. In such circumstances, whether the petitioner has taken active part in the commission of offence and the question as to whether the statement recorded from A1 under Section 67 of the N.D.P.S. Act shall be used against the petitioner has to be decided only at the time of trial. 12.It is appropriate to consider the decisions of the Apex Court relied on by the petitioner in Union of India Vs. Balmukund and others reported in (2009) 12 Supreme Court Cases 161, wherein, the Apex Court has held in paragraph 28 as follows: “Para 28.Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance with the statutory provisions must be insisted upon. While considering a https://hcservices.ecourts.gov.in/hcservices/ case of the present nature where two persons may barely read and write Hindi, are said to have been used as carrier containing material of only 1.68% of narcotics, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Acgt without any independent corroboration particularly in view of the fact that such statements have been retracted.” 13.In Union of India Vs. Shiv Shanker Kesari reported in (2007) 7 Supreme Court Cases 798, this Court, has held as follows: “Para 3. According to learned counsel for the appellant the parameters of Section 37 of the Act have not been kept in view while accepting the prayer for grant of bail. It was pointed out that huge quantity of poppy straw was recovered from the possession of the respondent from House No.K.63/121, Gola Deena Nath, Varanasi. It is submitted that the prayer for bail was rejected by the District Judge in terms of Section 37 of the Act after elaborately dealing with the background facts. Bail can only be granted on fulfilment of two conditions i.e. (i) where there are reasonable grounds for believing that the accused is not guilty of the offence and (ii) that he is not likely to commit any offence while on bail. The learned Single Judge while accepting the prayer for bail has not recorded any finding that there are reasonable grounds for believing that the accused was not guilty. Further, no finding has been recorded that he is not likely to commit any offence while on bail. Para 7.The express used in Section 37 (1) (b) (ii) is “reasonable grounds”. the expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief https://hcservices.ecourts.gov.in/hcservices/ contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. Para 9.”9..... It is often said that 'an attempt to give a specific meaning to the word “reasonable” is trying to count what is not number and measure what is not space'. The author of Words and Phrases (Permanent Edn.) has quoted from Nice & Schreiber, In re to give a plausible meaning for the said word. He says 'the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'. It is not meant to be expedient or convenient but certainly something more than that.” 14.In Manoj Kumar Gupta V. State N.C.T. of Delhi reported in 2003 CRI.L.J. 2353, wherein, the High Court Delhi has held follows: “Para 4.After considering the submissions made by the learned counsel for the parties, this Court is of the considered view that prima facie there appears to be no believable evidence against the petitioner to hold him guilty of the offence under Section 21/29 of the Act. The disclosure statement of a co-accused is not substantive evidence. The entry in the diary allegedly recovered from the petitioner, apart from clouded under the question of admissibility, it is a highly doubtful piece of evidence for the reason that it would be very difficult for the Court to accept that after about one year and four months of the arrest of co-accused. Dinesh Kumar and recovery of the contraband from him, the petitioner was keeping the said incriminating diary https://hcservices.ecourts.gov.in/hcservices/ in his possession so as to make it available to the prosecution as evidence against him. the Apex Court even in the case of Babua V. State of Orissa (supra) has held that the bat of Section 37 would be attracted if the Court is of the view that the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner. The Courts are not expected to accept every word of the prosecution as gospel truth and invoke the bar of Section 37 against an accused even if the evidence against him appears to be ridiculous and unbelievable. Courts cannot take any risk in the matter of liberty of the citizens. Para 5.Under the circumstances, this Court is of the considered view that the petitioner has succeeded in making ojut a case for bail in his favour inasmuch as there are reasonable grounds to believe that the accused is not guilty of the offence for which he is charged. In view of the fact that petitioner has no antecedents of crime, it can be safely said that he is not likely to commit any offence, if released on bail. Accordingly, the petitioner is allowed and the petitioner is ordered to be released on bail upon his executing a personal bond in the like amount to the satisfaction of the Court concerned.” 15.Considering the decision of the Apex Court in Union of India Vs. Shiv Shanker Kesari reported in (2007) 7 Supreme Court Cases 798, bail can only be granted on the fulfilment of two conditions i.e. (i) where there are reasonable grounds for believing that the accused is not guilty of the offence and (ii) that he is not likely to commit any offence while on bail. But, here, as already discussed in earlier paragraph, on 07.01.2006, A1 was intercepted and from A1 and A2, the contraband heroin worth about Rs.4 crores has been seized and A1 has given statement under Section 67 of the N.D.P.S. Act, wherein, the https://hcservices.ecourts.gov.in/hcservices/ name of the petitioner has been mentioned as Raja/A3, from whom, A1 got the contraband on 02.01.2006. He has also confirmed and identified the accused through the photo of Murugan that the same Murugan @ Manal Murugan and Raja/A3 is one and the same person. 16.In such circumstances, there is reasonable ground for disbelieving that the accused is not guilty of the offence. Admittedly, the petitioner was acquitted in a criminal case and two criminal cases registered against him were quashed and another two criminal cases, the charges were dropped against the petitioner. Considering facts and circumstances of the case, I am of the view that there is no reasonable ground for believing that the accused is not guilty of the offence, and hence, it is not a fit case for granting anticipatory bail and the petitioner deserves to be dismissed. 17.Accordingly, this criminal original petition is dismissed. sd/- 30/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO 1 THE SPL PUBLIC PROSECUTOR ( NCB) MADURAI BENCH OF MADRAS HIGH COURT MADURAI 2 THE INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, CHENNAI. 1 CC to M/S. C.ARUL VADIVEL @ SEKAR, Advocate SR.No.34452: DM::2011:OCTOBER:::03:: ORDER IN CRL OP(MD) No.8505 of 2011 Date :30/09/2011 9P:4C:: https://hcservices.ecourts.gov.in/hcservices/