BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Monday, the Nineteenth day of December Two Thousand Eleven PRESENT THE HON`BLE MR.JUSTICE V.PERIYA KARUPPIAH CRL OP(MD) Nos.5182 & 14285 of 2011 ANDREWS ...PETITIONER IN CRL.OP.5182/11 JOHN SUSAI MANILA @ MANALA ...PETITIONER IN CRL.OP.14285/11 Vs THE INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU, SOUTH ZONAL UNIT, CHENNAI - 90 ... RESPONDENT IN BOTH THE PETITIONS For Petitioner : M/S.T.K.SAMPATH Advocate IN CRL.OP.5182/2011 FOR PETITIONER : MR.R.C.PAULKANAGARAJ ADVOCATE IN CRL.OP.14285/2011 For Respondent : MR.ARUL VAIDVEL ALIAS SEKAR IN BOTH THE PETITIONS SPECIAL PUBLIC PROSECUTOR FOR NDPS ACT PETITION FOR BAIL Under Sec.439 Cr.P.C. ORDER : The Court Made the following order :- Crl.O.P.No.5182 of 2011 This petition has been filed by the petitioner, who is the second accused and he was arrested and remanded to judicial custody on 01.04.2009 for the alleged commission of offences under Sections 8(c) r/w 20(b), 21, 23, 27A, 28 and 29 of NDPS Act in the case in C.C.No.93 of 2009, on the file of Additional District-cum-Special Judge for NDPS Cases at Pudukottai, seeking for bail. Crl.O.P.No.14285 of 2011 This petition has been filed by the petitioner, who is the first accused and he was arrested and remanded to judicial custody on 01.04.2009 for the alleged commission of offences under Sections 8(c) r/w 20(b), 21, 23, 27A, 28 and 29 of NDPS Act, in the case in C.C.No.93 of 2009, on the file of Additional District-cum-Special Judge for NDPS Cases at Pudukottai, seeking for bail. 2.Heard, Mr.T.K.Sampath, learned counsel appearing for the petitioner in Crl.O.P.No.5182 of 2011, Mr.R.C.Paulkanagaraj, learned counsel appearing for the petitioner in Crl.O.P.No.14285 of 2011 and Mr.Arul Vadivel alias Sekar, learned Special Public Prosecutor for NDPS Act, appearing for the respondent. 3.The learned counsel appearing for the petitioner in Crl.O.P.No.5182 of 2011 would submit in his argument that the petitioner was ranked as A2 in the case and the charges against him was that, he conspired with the https://hcservices.ecourts.gov.in/hcservices/ A1, had secreted contraband in the seashore and thus committed the offence. He would further submit that the petitioner did not give any confession, but the accusation against the petitioner was only on the basis of the confession given by the first accused. 4.The learned counsel for the petitioner would further submit in his argument that the confession given by the co-accused will not bind upon the petitioner. He would rely upon the judgment of the Hon'ble Apex Court reported in 2009(2) Crimes 171 (SC), U.O.I. v. Bal Mukund & Ors, in support of his argument. He would further submit that the possession of contraband was not with the petitioner. Even otherwise, the possession of the 900 grams of heroin cannot be taken as a whole, but the percentage of presence of heroin in the total mass has to be considered, for the purpose of the possession of commercial quantity to be dealt with under Section 37 of the Act. He would refer the Judgment of the Hon'ble Apex Court reported in 2008 Drugs Cases (Narcotics) 705 (SC), Sami Ullaha v. Superintendent, Narcotic Central Bureau. For that purpose he would submit yet another judgment of the Hon'ble Apex Court reported in 2008(5) SCC 161. In support of his argument, he would also rely upon some of the un- reported judgment of this Court for the said proposition of law. 5.He would further submit in his argument that the petitioner was in incarceration for several months and the earlier bail petition filed by him in Crl.O.P.No.4983 of 2009 was dismissed on 17.08.2008 and the trial is offing now and the petitioner may be granted bail for the purpose of effectively defending his case. 6.The learned counsel for the petitioner in Crl.O.P.No.14285 of 2011 would submit in his argument that the petitioner is the first accused and he was foisted in the case. The alleged confession statement given by the petitioner is not true. He would further submit in his argument that the quantum said to have been seized from the petitioner cannot be considered with the total mass or quantity. Since the presence of heroin in total mass has to be considered, the alleged seizure of the total mass of heroin cannot be considered. He would also adopt the arguments advanced by the second accused's counsel for the said proposition of law. 7.He would also submit that the petitioner was in incarceration for more than several months and he would not absconding from the any clutches of law and therefore, he may be granted bail. 8.Learned Special Public Prosecutor for NDPS cases, appearing for the respondent would submit in his argument that the first accused was arrested on information and he had given a voluntary statement under Section 67 of the NDPS Act and the petitioner was arrested after the seizure of contraband on 29.04.2009 and in the confession, the first accused had strongly implicated the second accused, who was received 1.013 kilograms of heroin and 2.798 kilograms of Ganja at the seashore of Thangachimadam, which was procured by the fourth accused from Madya Pradesh and was delivered to A3 Vasanthakumar @ Vasanthan and in turn, A3 handed over the contraband to A1 and the same were seized on the confession given by the first accused. The second accused was also actively involved in possession of the contraband which were above the commercial quantity. 9. He would further submit in his argument that the confession given by the first accused should have been considered only at the time of trial and it cannot be agitated by the learned counsel for the second accused at the stage of the bail. https://hcservices.ecourts.gov.in/hcservices/ 10. He would further submit that the trial is in progress and the petitioners in both the petitions are habitual offenders and if for any reason, the petitioner are granted bail, they would certainly abscond from the clutches of law and trial will come to a halt. 11.He would also refer to the judgment of the Hon'ble Apex Court reported in AIR 2001 (SC) 1052 (Babua v. State of Orissa) for the proposition that the abetting offence punishable under Sections 20(b), 21 and 29 of NDPS Act cannot be decided at the stage of bail. He would further refer to a judgment of the Hon'ble Apex Court reported in AIR 2003 (SC) 2172 (Achint Navinbhal Patel v. State of Gujarat, for the proposition that delay in investigation and the trial proceedings would not be a cause for the release of the accused on bail, when the offences punishable are under Sections 22,23,24 and 29 of NDPS Act, which are serious in nature. 12. He would also cite the judgment of the Hon'ble Apex Court reported in AIR 2004(SC) 2950 (Narcotics Control Bureau v. Dilip Pralhad Namade) explaining the circumstances and reasons to grant bail. Yet another judgment of the Hon'ble Apex Court reported in (2009) 2 SCC 624 (Union of India v. Rattan Mallik) was also relied upon, in support of his arguments. Therefore, he would request the Court that the petitioners are not entitled for any bail at the hands of this Court, since they are habitual offenders and they are likely to abscond from the clutches of law under the guise of bail. 13. I have given anxious thoughts to the arguments advanced on either side. The petitioners are accused Nos.1 and 2 in Crime No.24 of 2009 which was taken on file in C.C.No.93 of 2009, pending trial. Both the accused Nos.1 and 2 are in incarceration. 14. According to the submission of the learned Special Public Prosecutor, the accused persons are habitual offenders. However, the learned counsel for the petitioners would draw the attention of this Court that the commission of offence in respect of A2 was not prima facie made out since he was proceeded on the basis of the confession given by the first accused that A2 also participated in the said crime. He had drawn the attention of this Court that the said statement given by the co-accused will not bind the other accused and it cannot be taken as a proof. The proposition of law put forth in the said judgment produced by the learned counsel appearing for the second accused are not disputable. However, the applicability of the principle the present case and the involvement of the second accused have to be decided only by the trial Court, based on the circumstances and evidence produced before it. 15. The second argument on the part of the petitioners (A1 and A2) would be that the quantum seized are no doubt the commercial quantities but the total mass cannot be considered for the commercial quantity and only the percentage of presence of the contraband alone be taken for consideration. The said proposition of law is also not disputable and the presence of contraband could also been considered by the trial Court against the petitioners who are A1 and A2 on the basis of the evidence produced. The point for the grant of bail was considered in the judgment of the Hon'ble Apex Court reported in AIR 2004(SC) 2950 (Narcotics Control Bureau v. Dilip Pralhad Namade), the relevant portions are as follows: https://hcservices.ecourts.gov.in/hcservices/ “the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative.” On a careful perusal of the said dictum laid down by the Hon'ble Apex Court, I could see that the object of granting bail is purely on the satisfaction of the Court that reasonable grounds are there for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. 16. According to the submissions of learned Special Public Prosecutor for NDPS case, appearing for the respondent, if the petitioners are released on bail, they being habitual offenders would indulge in further cases and would also abscond from the clutches of law. The earlier bail petition filed by the second accused was dismissed on 17.08.2008. Now the trial isoffing, I do not find any change of circumstances from the date of dismissal of the said plea till this date. Therefore, I am not impressed in the arguments of the learned counsel for the petitioners for the grant of bail and accordingly, both the petitioners are not entitled for bail even at this stage. 17. From the aforesaid discussion, I am of the considered view that the bail plea of the petitioners in both the petitions are liable to be dismissed and accordingly dismissed. sd/- 19/12/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1 THE ADDITIONAL DISTRICT CUM SPECIAL JUDGE FOR NDPS CASES, PUDUKOTTAI. 2 THE INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU, SOUTH ZONAL UNIT, CHENNAI - 90 3 THE SUPERINTENDENT, CENTRAL PRISON, MADURAI. 4 THE PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +2 CC TO MR.C.ARUL VAIDVEL @ SEKAR, ADVOCATE SR.NO.44480 & 44481. ORDER IN CRL OP(MD) No.5182 of 2011 Date :19/12/2011 4P/7C RPB : 27.12.2011 https://hcservices.ecourts.gov.in/hcservices/