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2025 DIGILAW 1691 (KER)

Hakkim v. State Of Kerala

2025-06-20

BECHU KURIAN THOMAS

body2025
ORDER : BECHU KURIAN THOMAS, J. This is an application for regular bail filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 2. Petitioner is the fourth accused in Crime No.1539 of 2024 of Kodungallur Police Station registered alleging offences punishable under sections 20(b)(ii)(C), 25, and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). 3. According to the prosecution, on 28.10.2024, the first and second accused were found transporting 21.924 Kg of ganja in a car bearing registration No.KL-21-Q-3329 through the National Highway. Subsequently, during investigation, the third accused was arrayed as an accused, alleging that he had paid amounts to purchase a portion of the contraband. The petitioner was also arrayed as the fourth accused, alleging that he had provided a car to accused 1 and 2 for transporting the contraband from Odisha to Kerala and the accused together committed the offences alleged. 4. Sri.Vivek Venugopal, the learned counsel for the petitioner submitted that petitioner was arrested on 10.01.2025 without any basis and no material exists to connect him with the crime. According to the learned counsel, except for the confessional statement of a co-accused, there are no materials to connect the petitioner with the offence alleged. The learned counsel further pointed out that even the allegation that the vehicle that was used to transport the contraband belonged to the petitioner, is incorrect since the owner of the vehicle is Sri. Sakeer, who had filed Crl.M.P. No.1814 of 2025 before the Sessions Court, Thrissur and obtained release of the vehicle from the court, after finding that he was the registered owner, in exclusive possession of the vehicle and the accused had used the vehicle without his knowledge or consent. The learned counsel also submitted that considering the absence of any material to connect the petitioner with the crime and taking note of the period of detention already undergone from the date of arrest, petitioner's further detention is unnecessary. 5. Sri. K.A. Noushad, the learned Public Prosecutor on the other hand contended that the vehicle actually belongs to the petitioner as investigation has revealed that CW22, who was the registered owner of the vehicle, had sold it to CW25, who in turn sold it to CW26. Thereafter the vehicle was pledged to Hakkim, who handed over the vehicle to accused 1 and 2 for transporting the contraband. Thereafter the vehicle was pledged to Hakkim, who handed over the vehicle to accused 1 and 2 for transporting the contraband. It was also submitted that the second accused had confessed that the petitioner handed over the vehicle to the said accused to travel all the way to Odisha to purchase the contraband. The learned Public Prosecutor further submitted that release of the vehicle to Sri.Sakeer on interim arrangement, is not determinative of the question and considering the quantity of contraband seized, the rigour under section 37 of the NDPS Act will apply and therefore the petitioner ought not to be released on bail. 6. On an appreciation of the contentions raised, it needs to be noted that under criminal jurisprudence, confession of a co-accused, is not a substantive evidence as held in the decision in Haricharan Kurmi and Another v. State of Bihar [ AIR 1964 SC 1184 ] . It was held in that decision that the evidentiary value of the confessional statement of an accused against a co-accused is reflected from the provisions of S.30 of the Indian EVIDENCE ACT , 1872. The crucial expression used in S.30 is "the Court may take into consideration such confession". These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. The legal position was illustrated in Haricharan Kurmi’s case (supra) as under: "…......In dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence." 7. In the decision in Tofan Singh v. State of Tamil Nadu [ (2013) 16 SCC 31 ] , the Supreme Court held that the statement recorded under section 67 of the NDPS Act cannot be used to convict an accused under the said statute. 8. In the decision in Tofan Singh v. State of Tamil Nadu [ (2013) 16 SCC 31 ] , the Supreme Court held that the statement recorded under section 67 of the NDPS Act cannot be used to convict an accused under the said statute. 8. Apart from the above, in the decision in State (by NCB) Bengaluru v. Pallulabid Ahmad Arimutta and Another (2022 SCC OnLine SC 47), the Supreme Court while considering the challenge against the grant of bail to persons accused of offences under the NDPS Act, observed that the arrests made on the basis of confessional/voluntary statements of the respondents or the co-accused under section 67 of the NDPS Act cannot form the basis for overturning an order granting bail. In the said case, the court came to the above conclusion after noticing that, other than the voluntary statements of two of the accused recorded under section 67 of the NDPS Act, there was no other substantial material available to connect the accused with the crime of drug trafficking. Similarly, in the decision in Balwinder Singh (Binda) v. Narcotics Control Bureau (2023 SCC OnLine SC 1213) , it was observed that in the absence of other independent incriminating evidence, the statement under section 67 of the NDPS Act by one of the accused cannot be relied upon to find the accused guilty. 9. Thus, in the absence of any legally incriminating material connecting an accused with the offence alleged, a person cannot be found to be guilty. While considering a bail application relating to an offence under the NDPS Act, especially after the final report is filed, there must be some legally sustainable material to connect the accused with the offence alleged. More serious the offence, stricter must be the degree of proof to find an accused guilty. Hence, after the final report is filed, the prosecution cannot rely upon the statement of the accused under section 67 of NDPS Act as the sole material to connect an accused with the crime. However, during the stage of investigation, that statement may be relied upon to oppose a bail application, but thereafter, there must be some other incriminating material to connect the accused with the crime. In the absence of any such material, the rigour under section 37 of NDPS Act will get diluted. However, during the stage of investigation, that statement may be relied upon to oppose a bail application, but thereafter, there must be some other incriminating material to connect the accused with the crime. In the absence of any such material, the rigour under section 37 of NDPS Act will get diluted. Once the prosecution is prima facie unable to establish a legally connecting link between the accused and the offence alleged, rigours in granting bail becomes diluted. 10. In the instant case, even if the prosecution allegations are admitted, the vehicle, though registered in the name of CW22, belongs at the most to CW30, who in turn had pledged it to Hakkim, the petitioner. There are no other materials to prima facie indicate any conspiracy between the petitioner and accused 1 and 2 to show that except for handing over the car to the accused, petitioner has done anything to enable the court to have a reasonable belief that the petitioner financed or conspired with accused 1 and 2 to procure the contraband or to transport the same. Merely because the vehicle in which accused 1 and 2 were travelling belonged at the most to the petitioner, the same cannot be a reason to assume or conclude that petitioner is guilty of the offence alleged, especially in the absence of any other material. 11. In this context it is pertinent to note that the petitioner has no criminal antecedents under the NDPS Act. The absence of any material collected by the investigating officer till date, to link the petitioner with the crime other than the vehicle having been pledged with him and in the absence of any antecedents of commission of a similar offence, it is not possible to assume that petitioner is guilty of the offence alleged. 12. As observed by the Supreme Court in State of Kerala and Others v. Rajesh and Others [ (2020) 12 SCC 122 ] , the scheme of section 37 requires that the power to grant bail under the NDPS Act is subject to the limitation placed in the said provision over and apart from the restrictions under the procedural law and the twin conditions stipulated therein are required to be satisfied. 13. 13. Further, in the decision in Narcotics Control Bureau V. Mohit Aggarwal [ (2022) 18 SCC 374 ] , it has been observed that the focus must be on the availability of reasonable grounds to believe that the accused is not guilty of the offence alleged against and also that he is unlikely to commit an offence under the Act. 14. In the decision in Jalaluddin Khan v. Union of India [ (2024) 10 SCC 574 ] it has been held that once a case for grant of bail is made out, the court should not have any hesitation in granting it, even if the allegations of the prosecution are very serious. When a case is made out for grant of bail, Courts should not have any hesitation in granting bail, even if the allegations of the prosecution are very serious as otherwise, it would turn out to be a violation of the rights guaranteed under Article 21 of our Constitution. 15. In the instant case, though the problem of drug peddling and dealing with drugs in any manner unless authorized by law, is a serious crime against the society, which should be dealt with iron hands, in the absence of any material to assume that ultimately the petitioner would be found guilty of the offence alleged, his liberty, which is an invaluable right, ought not to be infringed upon. The prima facie conclusion which has to be arrived at regarding the guilt of an accused, for the purpose of grant of bail or otherwise, must be based on reasons and having regard to the vital materials brought out on record. When the materials to link the petitioner with the offence alleged are lacking, despite months of investigation, the court cannot but uphold the liberty of the individual. 16. Bearing in mind the above principle, this Court is of the view that there are reasonable grounds to believe that the petitioner is not guilty of the offence alleged against him under the NDPS Act. Further, since there are no criminal antecedents against the petitioner for having committed the offences under the NDPS Act, there is no reason to assume that he will commit the offences under the said Act, if released on bail. The only criminal case alleged against the petitioner is Crime No. 1647 of 2020 of Vanchiyur Police Station alleging offences under the Indian Penal Code, 1860. The only criminal case alleged against the petitioner is Crime No. 1647 of 2020 of Vanchiyur Police Station alleging offences under the Indian Penal Code, 1860. Thus the rigour under section 37 of the NDPS Act stands diluted in the instant case and the petitioner is entitled to be released on bail. Accordingly, this bail application is allowed and the petitioner is enlarged on bail on the following conditions: (a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. (b) Petitioner shall co-operate with the trial of the case. (c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the evidence. (d) Petitioner shall not commit any similar offences while he is on bail. (e) Petitioner shall not leave the country without the permission of the jurisdictional Court. In case of violation of any of the above conditions or if any modification or deletion of the conditions are required, the jurisdictional Court shall be empowered to consider such applications if any, and pass appropriate orders in accordance with law, notwithstanding the bail having been granted by this Court.