Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 1746 (KER)

Siraj Vellarambil Mohammed v. State of Kerala

2025-07-01

BECHU KURIAN THOMAS

body2025
ORDER : BECHU KURIAN THOMAS, J. This bail application is filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (for short ‘ BNSS ’). 2. Petitioner is the third accused in O.R. No.4 of 2019 of Narcotic Control Bureau, Kochi, Ernakulam registered for the offences punishable under sections 22(c), 23(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act , 1985 (for short ‘NDPS Act’). 3. According to the prosecution, pursuant to information received on 02.09.2019, the first accused was found in possession of 490 grams of methamphetamine in a hand baggage, as he was about to travel out of India in Qatar Airways flight QR 537. The investigation revealed that the third accused had handed over the bag containing the contraband articles to the second accused, who in turn, handed it over to the first accused and thus, the accused together committed the offences alleged. 4. The first and second accused were arrested earlier and, therefore, the case against them were split up and was tried as S.C.No.260 of 2020. By judgment dated 22.12.2021, the Special Court for NDPS Act cases, Manjeri acquitted the first and second accused. Since the petitioner, as the third accused, was absconding, the case against him was split up and re-numbered as S.C.No.522 of 2022. In the meantime, petitioner was arrested on 23.02.2025 and he has been in custody since then. 5. Sri.Sam Isaac Pothiyil, the learned counsel for the petitioner submitted that the offences alleged against the petitioner and the second accused are identical and, since the second accused has already been acquitted, the benefit of the said acquittal should be extended to the petitioner also. It was submitted that there are no materials to connect the petitioner with the crime and, hence, the rigour under Section 37 will stand diluted and the petitioner ought to be released on bail. 6. Sri.R.Vinu Raj, the learned Special Public Prosecutor, on the other hand, contended that the petitioner is alleged to have conspired with the other accused to commit the offence and, therefore, notwithstanding the acquittal of accused Nos.1 and 2, and hence the offence will arise. 6. Sri.R.Vinu Raj, the learned Special Public Prosecutor, on the other hand, contended that the petitioner is alleged to have conspired with the other accused to commit the offence and, therefore, notwithstanding the acquittal of accused Nos.1 and 2, and hence the offence will arise. It was also submitted that a special leave to prefer an appeal against the judgment of acquittal has already been preferred as Crl.L.P.No.496 of 2023 and therefore the judgment of acquittal has not become final and hence, the petitioner cannot rely on the acquittal of co-accused. The learned counsel further submitted that there are other independent materials to connect the petitioner with the offence of conspiracy and therefore, bail ought not to be granted. 7. I have considered the rival submissions. 8. Annexure- A1 is the judgment of acquittal in S.C.No.260 of 2020 in respect of accused Nos.1 and 2 in the same crime. Paragraphs 20 and 21 of the said judgment reads as below:- “20. The offence alleged against the 2nd accused is that he conspired together along with first accused for exporting methamphetamine from India to Doha. It is true that from Ext.P44 series call details controlled by the mobile numbers of A2 he had contacted Al. Since the possession of the contraband articles by A1 itself is doubtful, and not proved, there is no question of entering into conspiracy by A1 and A2 for the export of the contraband articles. It is true that Ext.P14 the confession statement of A1 and Ext.P33 confession statement of A2 were marked. Those are not admissible in evidence in the light of the decision in Tofansing V. Tamil Nadu reported in 2020(6) KHC 111 wherein Hon'ble Apex court has held that officers who are invested with powers u/s 53 are police officers within the meaning of sec.25 of Evidence Act, as a result of which any confessional statements made to them would be barred u/s 25 of Evidence Act and cannot be taken into account in order to convict a accused under the NDPS Act. Therefore Ext. P14 and Ext.P33 are not admissible in evidence and hence cannot be relied on. 21. Therefore Ext. P14 and Ext.P33 are not admissible in evidence and hence cannot be relied on. 21. Considering the above discussion it can only be concluded that the prosecution has failed to prove that Al was in possession of 490 grams of Methamphetamine and has attempted to export the same from India and both Al and A2 have conspired together for exporting 490 grams of methamphetamine from India. Hence A1 and A2 cannot be found guilty for offences u/s 22(c), 23(c), 28 and 29 of NDPS Act and they are acquitted. Therefore these points are found accordingly against the prosecution.” 9. A reading of the above extracted portion of the judgment of acquittal of accused 1 and 2 indicates that the prosecution had failed to prove that the first accused was in possession of 490 grams of methamphetamine or that he had attempted to export the same from India or even that the first and second accused had conspired to export the contraband from India. The aforesaid judgment was not been appealed against by the Narcotics Control Bureau until 2023 when they filed a leave petition as Crl.L.P. No.496 of 2023. Even now, leave has not been granted by the Court. Since the Judgment of acquittal has not been reversed till now, I am of the view that the observations in the said judgment have a bearing on the question of existence of reasonable grounds to believe that the accused is guilty or not. 10. Since the contraband allegedly seized from the first accused falls in the category of commercial quantity, the rigour under Section 37 of NDPS is attracted. However, to continue the custody of the petitioner, there must be reasonable grounds before this Court to believe that the petitioner is guilty of the offences alleged. 10. Since the contraband allegedly seized from the first accused falls in the category of commercial quantity, the rigour under Section 37 of NDPS is attracted. However, to continue the custody of the petitioner, there must be reasonable grounds before this Court to believe that the petitioner is guilty of the offences alleged. When a Court of law has already decided, based on the evidence adduced by the prosecution, in respect of co-accused, that there is nothing to prove that there was any conspiracy or that the first accused was in possession of the contraband allegedly seized, I am of the view that the alleged conspiracy, even against the petitioner will have to fail, atleast prima facie: As the second accused stands on the same footing even in respect of conspiracy as that of the third accused, the finding of acquittal in favour of the second accused stares at the face of the prosecution, even in respect of the petitioner. 11. Though it was pointed out that the petitioner is involved in similar other crimes for having committed an offence under the NDPS Act for possessing an intermediate quantity of crime, I am of the view that, since there are no reasonable grounds to believe that he is guilty of the offence, the continued detention is not warranted as the rigour under Section 37 stands diluted. In the result, this application is allowed 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.