IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 Bail Appl..No. 1316 of 2010 O.R./NDPS/03/2009 OF D.R.I. REGIONAL UNIT, COCHIN PETITIONER/ACCUSED NO2 ------------------------------------------ DR.RAMESH KUMAR,. AGED 34,S/O.M.DURAISAMY, P-10,PRIME APARTMENTS, AVINASHI ROAD, TIRUPUR, TAMIL NADU. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR RESPONDENT: COMPLAINANT -------------------------- INTELLIGENCE OFFICER, DIRECTORATE OF REVEINE INTELLIGENCE, REGIONAL UNIT KOCHI, (REPRESENTED BY THE STANDING COUNSEL,DRI) BY ADV. SRI.C.P.UDAYABHANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 9/3/2010, ALONG WITH BA NO.1428 OF 2010, THE COURT ON 22/03/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1316 & 1428 OF 2010 ------------------------------------------------------ Dated this the 22nd day of March, 2010 O R D E R B.A. No. 1428 of 2010 is filed by Accused No.1 R.Ramaraj and B.A. No.1316 of 2010 is filed by accused No.2 Rameshkumar in O.R./NDPS/03/2009 of DRI Regional Unit, Cochin, under Section 439 of the Code of Criminal Procedure. 2. The offence alleged against the accused is under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act. Accused No.3 Sreenivasan alias Chidambaran alias Seenu is not arrested so far. 3. The gist of the prosecution case is the following: The Department of Revenue Intelligence got secret information that Sreenivasan alias Chidambaram alias Seenu (hereinafter referred to as Seenu) had procured about 30 Kilograms of Charas and 100 Kilograms of Ephedrin and that Seenu had engaged Ramaraj and Rameshkumar belonging to Tirupur to transport the Charas to Kochi for local sale. The DRI also got information that Ramaraj and B.A. NO.1316 & 1428 OF 2010 :: 2 :: Rameshkumar had proceeded to Kochi in a black coloured Toyota Innova car and they had checked in at Room No.425 of Hotel Abad Plaza, M.G.Road, Ernakulam. They also got information that Ephedrin was stored in a room rented out to Selvakumar. 4. On 23-11-2009 at about 10.30 A.M., the team of officers of DRI reached Hotel Abad Plaza. They met Ramaraj and Rameshkumar at Room No.425. On a thorough search in the room and on a personal search of Ramaraj and Rameshkumar, no charas could be found out. On questioning, Ramaraj disclosed that a quantity of 30 Kgs. of Charas was kept in a black bag in the Toyota Innova car bearing Registration No.TN 56 4477. They accompanied the officers. Ramaraj opened the rear door of the car and showed the bag. Charas was kept in six polythene packets. Each packet contained 10 small packets of charas weighing about 500 grams each. 5. The petitioners were arrested on 23-11-2009. The statements of Ramaraj and Rameshkumar were recorded B.A. NO.1316 & 1428 OF 2010 :: 3 :: under Section 67 of the NDPS Act. Ramaraj stated that Rameshkumar was also aware of the fact that Charas was kept inside the bag. However, Rameshkumar denied the same. The statement of Ramaraj would also show the complicity of Rameshkumar in keeping Ephedrine in the room of Selvakumar. However, Rameshkumar stated that it was Ramaraj who kept Ephidrine in the room of Selvakumar. It is fairly clear from the statements of Ramaraj and Rameshkumar that both of them knew Selvakumar and that both of them were aware that the powder kept in the room of Selvakumar was Ephidrine. It is also clear that Ramaraj, Rameshkumar and Seenu are close friends. 6. In the Bail Application, Ramaraj stated that he is a B.A. degree holder and a reputed businessman in Tirupur. He is having well established business under the name and style “Speed Cargo”, engaged in freight clearing and forwarding at Tirupur and Tuticorin. Ramaraj stated in the Bail Application, thus: “Sri. D.Ramesh Kumar, accused No. 2 in this case, who is the son of M.Duraisamy, who is in the B.A. NO.1316 & 1428 OF 2010 :: 4 :: textile business for the past ½ a century and running textile business in the name and style of “Jimmy Knitters”, which is one of the biggest and most reputed textile manufacturing unit of Tirupur, is closely known to the petitioner. Jimmi Knitters is having business dealings with many dealers in textiles and garments, in the State of Tamil Nadu, Kerala & Karnataka. Garments and other textile items of Jimmy knitters are being regularly supplied to those dealers including several textile shops in Kochi, Thrissur, Kottayam, Punalur, Thiruvananthapuram etc. The said D. Ramesh Kumar used to visit Kochi and other places in connection with the textile business. The export of the products of Jimmy Knitters was being done through the company of the petitioner. Similarly Sreenivasan @ Seenu who hails from Tirupur and is in the garment and textile business and an exporter of garments is also well known to the petitioner. The export of the products of the said Sreenivasan was also arranged through the petitioner. Some time during September 2009, the said D.Ramesh Kumar, who is in the habit of making business trips to places like Thirupathi, Chennai, Bangalore, Kochi, and other places for contacting various dealers in those places by self driving his vehicle with one or two of his friends, purchased an B.A. NO.1316 & 1428 OF 2010 :: 5 :: Innova Car. He had not undertaken any such long trips, in this newly purchased car. The whole expenses incurred for such trips were being met by D.Rameshkumar himself. Shri. D.Ramesh Kumar, invited the petitioner to join him during his business trip to Kochi in the said Innova car. Seenu, who is a close friend of the father of D.Ramesh Kumar came to know about the above trip to Cochin and enquired with him, whether he can hand over a bag of Seenu to a friend of Seenu at Cochin. The above request was readily accepted by D.Ramesh Kumar, since he did not suspect any foul play. The petitioner when he came to know about this also did not object to this as he also did not suspect any foul play in the matter. The petitioner did not ask or enquire with Seenu about the contents of the baggage and Seenu also did not tell anything about the same. On knowing about the date (22-11-2009) and time of the trip to Cochi, Seenu informed that he can hand over the bag in front of Ramana Hotel, which is on the way to Cochin from the residence of D.Ramesh Kumar and near the house of Seenu. By about 2.30 P.M. the car reached near the hotel. When D.Ramesh Kumar who was driving the vehicle stopped the car Seenu kept his bag on the back side seat of the car. The petitioner was sitting on the front seat. The petitioner and D.Ramesh Kumar did not B.A. NO.1316 & 1428 OF 2010 :: 6 :: even care to look at the bag as they did not entertain any kind of suspicion or foul play. Seenu informed them that his friend will collect the bag by around 11 A.M. next day from Abad Hotel, where the petitioner and D.Ramesh Kumar intended to stay, while at Cochin.” 7. Rameshkumar stated in his Bail Application that he hails from a very respectable family in Tirupur. Though he started a business, it was stopped. Thereafter, he joined his father Duraisamy, popularly known as Jimmi M. Duraisamy, who is in the textile business for the past 43 years. The sale and export of garments is made under the name and style “Jimmi Knitters” with the brand name “J.K.”. Jimmi Knitters is having business dealing with many dealers in textiles and garments, in the State of Tamil Nadu, Kerala and Karnataka. Rameshkumar has also put forward a story similar to the story put forward by Ramaraj. 8. Ramaraj and Rameshkumar contended that they are really innocent. They never had any dealing in narcotic drugs. They never knew that narcotic drug was kept in the bag entrusted by Seenu. B.A. NO.1316 & 1428 OF 2010 :: 7 :: 9. Ramaraj and Ramesh Kumar filed Bail Application before the Court of the Sessions Judge, Ernakulam, which was dismissed as per the order dated 19th December 2009. Rameshkumar moved another Bail Application before the Sessions Court, which was also dismissed as per the order dated 2nd February 2010. 10. Sri.B. Raman Pillai, the learned counsel appearing for the second accused (Rameshkumar) argued that there is nothing to connect the second accused with the offence. He is innocent. The counsel also submitted that the facts and circumstances of the case are sufficient to satisfy both the ingredients of Section 37 (1) (b) (ii) of the Act so as to grant bail to the second accused. 11. The learned counsel appearing for the first accused (Ramaraj) also made similar submissions. He also submitted that the first accused had later retracted from his statement made under Section 67 of the Act. B.A. NO.1316 & 1428 OF 2010 :: 8 :: 12. Sri.Udayabhanu, the learned Public Prosecutor, submitted the following. The statement of the first accused would clearly indicate the complicity of all the accused in the offence. Subsequent retraction from the statement is of not quite relevant. A search was conducted in the premises of accused No.3 at Coimbatore. Large quantity of a controlled substance, namely, Ephedrine was seized. The statements given by accused Nos.1 and 2 would clearly show that they knew very well about the dealing in Ephedrine. This shows the close link between accused Nos.1,2 and 3. In these circumstances, it is puerile to think that accused Nos.1 and 2 were innocent carriers of the large quantity of Charas entrusted by accused No.3. He added that the value of the charas involved in the case comes to about Rs.30 crores. Sri. Udayabhanu added that one foreign national is controlling the business in narcotic drugs in South India. Seenu is one of his main agents. The drug traffickers selected Tirupur as area of their operation because Tirupur is Special Economic Zone. Since the officers of the DRI were very vigilant at Tirupur, the drug traffickers appear to have changed the venue of their activities to Cochin. It is also submitted that Seenu is a B.A. NO.1316 & 1428 OF 2010 :: 9 :: member of the racket of drug traffickers and accused Nos.1 and 2 being his close friends were also involved in the transaction. Sri. Udayabhanu also submitted that the charas involved in the case was mechanically pressed and packed. 13. Section 37 (1) (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act provides that where the Public Prosecutor opposes the application for bail, no person accused of an offence punishable for offences involving commercial quantity shall be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Taking into account the facts and circumstances of the case, It cannot be held that there are reasonable grounds for believing that the petitioners are not guilty of such offence. The second accused is the owner of the car. The first accused is his close friend. The third accused entrusted the narcotic drug to them for being taken to Ernakulam. It cannot be believed, prima facie, that the accused Nos.1 and 2 were unaware of the contraband being kept inside the bag. The statements given by accused B.A. NO.1316 & 1428 OF 2010 :: 10 :: Nos.1 and 2 indicate that there was also a dealing in respect of Ephedrine. Their statements, prima facie indicate about their complicity in the said dealing. In such circumstances, the case of the prosecution that accused Nos.1 and 2 were really involved in the transporting and dealing with the narcotic drug, prima facie, appears to be probable. It is true, the second accused stated in his statement under Section 67 of the Act that he was not aware of the contents in the bag given by Seenu. But when all the facts and circumstances are taken note of, it cannot be held, prima facie, that the second accused was unaware of the transaction. In view of the close association of the accused persons with each other and their complicity in dealing with a controlled substance, namely, Ephedrine, it cannot be held that the petitioners are not likely to commit any offence while on bail. 14. The Supreme Court considered the scope and ambit of Section 37 (1) (b) of the Narcotic Drugs and Psychotropic Substances Act in Union of India V. Rattan Mallik alias Habul : 2009 (2) KLT SN 82 (Case No. 83 (SC) = 2009 Crl.L.J 3042. It was held: B.A. NO.1316 & 1428 OF 2010 :: 11 :: “It is plain from a bare reading of the non obstante clause in the Section and sub section (2) thereof that the power to grant bail to a person accused of having committed offence under the N.D.P.S. Act is not only subject to the limitations imposed under S. 439 of the Code of Criminal Procedure, 1973. It is also subject to the restrictions placed by sub-cl. (b) of sub s. (1) of S. 37 of the N.D.P.S. Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions Viz: (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guility of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on “reasonable grounds”. The expression ‘reasonable grounds’ has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable cause for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. (Vide Union B.A. NO.1316 & 1428 OF 2010 :: 12 :: of India V. Shiv Shanker Kesari (2007 ) 7 SCC 798. Thus recording of satisfaction on both the aspects, noted above, is a sine qua non for granting of bail under the N.D.P.S. Act.” 15. Applying the above tests and taking into account the facts and circumstances of the case, I do not think I would be justified in granting bail to the petitioners. Accordingly, the Bail Applications are dismissed. (K.T.SANKARAN) Judge ahz/