IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Bail Appl..No. 5960 of 2008() ----------------------------- O.R.NO.1/08 OF DIRECTORATE OF REVENUE INTELLIGENCE, KOZHIKKODE PETITIONER/ACCUSED NO.1. -------------------------------------------- HABEEB RAHMAN, S/O. ABDULLAKUTTY, KOLATHIKKAL HOUSE, VETTUPARA, CHERUVAYOOR, CHEEKKODE, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENT(S): COMPLAINANT -------------------------- THE UNION OF INDIA, REPRESENTED BY THE SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, KOZHIKKODE - THROUGH THE ASSISTANT SOLICITOR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. ADV. SRI.C.P.UDAYABHANU FOR R1 THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 5960 of 2008 ----------------------------------------- Dated this the 7th October, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 21 and 23 of the NDPS Act. According to prosecution, the petitioner, who is the first accused, was taken into custody from the house of his friend and he was found in possession of 5 Kg of heroin. On questioning him, it was revealed that he had kept 6 Kg of heroin in his uncle's house also. The said heroin was also seized. It is further revealed in investigation that first accused hatched a criminal conspiracy with fourth accused in Rajastan and procured the contraband articles through accused 2 and 3 who brought it into Kerala. Fifth accused is the person, who allegedly financed the accused for procuring the articles. Petitioner had actually brought 10 Kg of heroin from Rajastan, out of which, 6 Kg is kept in his uncle's house and 4 Kg is allegedly sold to the 7th accused. But, during the investigation, nothing could be seized from the 7th accused. 3. The incident occurred on 23.5.2008 and the petitioner was arrested on 26.3.2008, on his appearance before the officials on notice. Learned counsel for petitioner submitted that the petitioner has absolutely no intention to abscond as it would be clear from his BA.5960/08 2 conduct in voluntarily responding to the notice and appearing before the officials. It is also submitted that the quantity involved is not as inflated as the learned Standing Counsel for the respondent would put it. As per the charge, the quantity of heroin is only 310.64 grams and 646 crams respectively. The quantity of actual heroin which is present in the article seized comes to only lower than the alleged quantity seized and what accounts is only the actual quantity of heroin on quantitative analysis. 4. Learned counsel for petitioner submitted that the 7th accused is already granted bail and there is no reason why bail should be refused to the co-accused. Learned counsel for petitioner also submitted that the articles were seized from two different places, which admittedly, do not belong to the petitioner or which is in possession of the petitioner. It is also revealed from the materials in the case records that the house of the petitioner was also searched, but nothing could be seized from the house. But petitioner is implicated in the offence by seizing some materials from the houses belonging to other persons. The petitioner is totally innocent of the allegations made. He has been in custody for the past 194 days and hence, bail may be granted to him, it is submitted. BA.5960/08 3 5. This petition is strongly opposed. Learned Standing Counsel for the respondent submitted that the actual quantity seized in this case is 5 Kg and 6 Kg respectively from two places and as per the investigation, both these articles belonged to the petitioner. The fact that he kept those articles in different places will not exonerate him from the liability and so also, the absence of any recovery from his own house, it is submitted. It is true that the actual quantity of heroin, which is found in the articles seized on quantitative analysis is what matters, as held by the Supreme Court in Micheal Raj v. Intelligence Officer, NCB (2008 SAR (Crl.) 339). However, even going by the quantitative analysis, the quantity seized in this case comes to more than the commercial quantity. 250 grams constitute the commercial quantity and the petitioner was in possession of much more than the said quantity. 6. Learned Standing Counsel also submitted that the charge sheet has been laid and the respondent is ready for trial, once it is scheduled. It is submitted by him that the fourth accused, with whom the conspiracy was hatched is not arrested so far. If the petitioner is released on bail, it is likely that he will tamper with evidence, influence witnesses or intimidate them and hence, he may not be granted bail. BA.5960/08 4 7. Learned Standing Counsel further submitted that it is true that the 7th accused is granted bail by this Court, but, it was taking into account the fact that no recovery was made from the 7th accused, though as per the prosecution allegation, he was in possession of 4 Kg of heroin. But, the benefit given to the 7th accused cannot be extended to this petitioner, who was actually found in possession of huge quantity of heroin. 8. On hearing both sides, on considering the gravity of offence and the possibility of the witnesses being influenced or intimidated or evidence being tampered with and taking into account the stage of the case, I find that it may not be proper, in the interest of justice, to grant bail to the petitioner, at this stage. As already pointed out, the bail application filed by the third accused also is rejected. 9. However, considering the long period of detention, the learned Special Judge is directed to dispose of the case as expeditiously as possible, and without any delay. With this direction, petition is dismissed. K.HEMA, JUDGE vgs.