IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Bail Appl..No. 3018 of 2009 OR.NO.1 OF 2006 OF THE NARCOTIC CONTROL BUREAU, TRIVANDRUM. PETITIONER/3RD ACCUSED ------------------------------------------ USMAN @ USMAN HAJI, PARAYARUKUZHIYIL HOUSE, AMAYUR, PATTAMBI, PALAKKAD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT: COMPLAINANT/STATE -------------------------------- NARCOTICS CONTROL BUREAU, REGIONAL INTELLIGENCE UNIT, TRIVANDRUM, REP. BY ITS PROSECUTOR. BY SPECIAL PUBLIC PROSECUTOR SRI.C.P.UDAYABHANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON 29/06/2009 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 3018 OF 2009 B ------------------------------------------------------ Dated this the 29th June, 2009 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.3 in O.R. No.1 of 2006 of the Narcotic Control Bureau, Thiruvananthapuram [S.T.No.210 of 2008 of Special Court, (Sessions Court) Palakkad]. 2. The offences alleged against the petitioner are under Sections 8(c), 21(c), 27-A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The facts of the case in brief are the following: On 15.3.2006, the Narcotic Control Bureau, Chennai Unit intercepted one K.P.Abdul Razak and one Moideenkutty at Shornur Railway Station. On search of their baggages, 7.785 Kgs of heroin, concealed in false bottom of two suitcases, were seized. They were arrested. It was disclosed that the heroin was to be taken to Jeddah by Moideenkutty by Saudi Airlines flight from Chennai. It was also disclosed that the petitioner was also involved in the crime. Investigation reveals that K.P.Abdul Razak procured the heroin from one Vasantlal Patidar and it was transported to Kerala with an B.A. NO. 3018 OF 2009 :: 2 :: intention to send it to Saudi Arabia through Moideenkutty and Usman (petitioner). The petitioner was arrested on 15.3.2006. The Sessions Judge, Palakkad, by the order dated 27.3.2006, rejected the bail application filed by the petitioner. The petitioner moved the High Court for bail. That application was also dismissed on 5.5.2006. It was stated in that order thus: “The petitioner is stated to be the kingpin of the racket behind the clandestine drug trafficking. He is alleged to have procured 7.785 kgs. of Heroin through the first accused by financing the operation.” Thereafter, the petitioner filed B.A.No.2911 of 2006 before the High Court of Kerala, which was also dismissed on 22.5.2006. Again the petitioner moved the High Court for bail in B.A.No.3597 of 2006, which was allowed by the order dated 21.8.2006. Thereafter, the bail applications filed by accused Nos.1 and 2 were also allowed by the High Court on 26.9.2006. 4. The Narcotic Control Bureau challenged the aforesaid orders passed by the High Court before the Supreme Court in Crl.A.No.1368 of 2008, Special Leave having been granted as per the order in S.L.P. (Criminal) No.2143 of 2007. The Honourable Supreme Court set aside the orders dated 21.8.2006 and 26.9.2006 passed by the High Court and cancelled the bail granted to the accused persons. It was also directed by the Honourable Supreme Court that the accused persons shall be taken B.A. NO. 3018 OF 2009 :: 3 :: into custody forthwith. Thereafter, the petitioner (accused No.3) was arrested on 9.5.2009 and he was remanded to judicial custody. 5. It is submitted that after investigation, the Narcotic Control Bureau submitted a final report before the Special Court, Palakkad and it was numbered as S.T.No.210 of 2008. The petitioner continues to be in judicial custody. 6. This Bail Application is filed by the third accused stating that the bail was cancelled by the Honourable Supreme Court since the High Court did not consider the case with reference to Section 37 of the NDPS Act. The counsel for the petitioner submitted that the confession statement recorded in the presence of a police officer is hit by Sections 25 and 26 of the Evidence Act and it is not admissible. It is also submitted that the petitioner is implicated in the case solely on the basis of the confession statement. The petitioner relied on the decision of the Supreme Court in Noor Alva v. State of Punjab (JT 2008 (7) SC 409) in support of his contention that the confession statement is inadmissible. On that ground the counsel submits that the petitioner is entitled to be released on bail. 7. Learned Public Prosecutor submitted that after the order was passed by the Honourable Supreme Court in Crl.A.No.1368 of 2008, the B.A. NO. 3018 OF 2009 :: 4 :: petitioner did not surrender. His sureties were summoned and they were ordered to pay the fine. The petitioner was arrested on 8.5.2009 in connection with Crime No.253 of 2009 of Pattambi Police Station and he was produced before Court in the present case on production warrant on 9.5.2009. Learned Public Prosecutor submitted that the Honourable Supreme Court was well aware of the fact that the complaint was filed on 8.9.2006. It was stated in paragraph 2 of the SLP that the final report was filed in the case. Learned Public Prosecutor also submitted that the Honourable Supreme Court considered all the facts and circumstances of the case and held that the High Court was not justified in granting bail to the petitioner. He relied on the judgment of the Supreme Court in Kunhaiyalal v. Union of India (AIR 2008 SC 1044) and contended that a statement made by the accused under Section 67 of the NDPS Act is excluded from the operation of Sections 24 to 27 of the Evidence Act. 8. While disposing of this Bail Application, it is not necessary to consider whether the confessional statement made by the petitioner is admissible or not. Any decision on the merits, either way, would cause prejudice either to the prosecution or to the accused. On the basis of the materials available in the case and also taking into account the facts and circumstances of the case and the judgment of the Honourable Supreme Court in Crl.A.No.1368 of 2008, the present request for granting bail is to B.A. NO. 3018 OF 2009 :: 5 :: be considered. The Honourable Supreme Court, while disposing of Crl.A.No.1368 of 2008 held thus: “The impugned orders are also contrary even from the point of view of propriety and discipline of the court. The court ought to have realized that the onus on the court was much greater, particularly when earlier bail applications were rejected only a few months ago. The court admittedly did not have any fresh material or extraordinary circumstance justifying grant of bail particularly when the same High Court while rejecting the bail application in this case on 5th May, 2006 observed that “the petitioner (respondent No.1 herein) is stated to be the kingpin of the racket behind the clandestine drug trafficking. The High Court in the impugned orders has ignored the ratio of number of judgments of this court dealing with the cases of illegal trafficking of narcotic drugs and psychotropic substances. ........ In the instant case 7.785 kgs. of heroin has been recovered from the respondent Nos.2 & 3, the value of which is several crores in the international market. Even releasing the respondents in this case may have disastrous consequences. In all probability the respondents would continue their nefarious activities of trafficking of narcotic drugs and psychotropic substances in a clandestine manner. The reason is obvious because of large scale profit involved in this business. In the instant case the court on the bail application on 5th May, 2006 specifically observed that the petitioner (respondent no.1 herein) is stated to be kingpin of the racket behind clandestine trafficking. In the facts of this case we are amazed how the High Court could grant bail to the respondents without having any fresh material on record or any extraordinary circumstance justifying grant of bail. Nothing is reflected in the impugned orders.” 9. Even though the Supreme Court disposed of Crl.A.No.1368 of B.A. NO. 3018 OF 2009 :: 6 :: 2008 on 29.8.2008, the petitioner did not surrender, in obedience to the order passed by the Honourable Supreme Court. He evaded from the process of law. He was arrested on 8.5.2009 in connection with another case registered by the Pattambi Police. The arrest of the petitioner was recorded in the present case on 9.5.2009, on a production warrant issued by the Court. The petitioner has no respect towards the proceedings of Court including that of the Honourable Supreme Court. He did not co- operate with the trial of the case by making himself available before court. This itself is an indication that if the petitioner is released on bail, he would make himself scarce. The submission of the learned Public Prosecutor that it is most likely that the petitioner may try to tamper with the evidence and influence and intimidate the witnesses, if he is granted bail, is worthy of consideration, in these facts and circumstances of the case. I do not find any change of circumstance in the case warranting grant of bail. If at all there is any change of circumstance, that is against the petitioner, since he did not surrender honouring the order passed by the Honourable Supreme Court. The incident took place in 2006 and even now the trial is not completed. At this stage, it is not proper to release the petitioner on bail. If he is released on bail, it is most likely that he would tamper with the evidence and try to protract the trial of the case by making himself scarce and fleeing from justice. It cannot also be held that the petitioner would not indulge in similar prejudicial activities, if he is granted bail. I am B.A. NO. 3018 OF 2009 :: 7 :: of the view that there are no reasonable grounds for believing that the petitioner is not guilty of the offence alleged against him. I am also not satisfied that the petitioner is not likely to commit any offence while on bail. That the petitioner was arrested in connection with Crime No.253 of 2009 of Pattambi Police Station would indicate that even after the order passed by the Honourable Supreme Court, the petitioner is alleged to have indulged in prejudicial activities. In the facts and circumstances of the case, I am of the view that the Bail Application is liable to be dismissed. Accordingly, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/